Johnson v. Cooper

56 Miss. 608 | Miss. | 1879

Campbell, J.,

delivered the opinion of the court.

The fact that the land, or some part of it, was exempt from execution in the lifetime of the testator did not render the order of the Probate Court to sell it void. - rior to the act of October 20, 1852 (Sess. Acts, p. 66), reí. estate exempt from execution was not longer exempted after the death of the owner; but by that act all property exempt from execution, “upon the death of the husband, dying intestate,” yvas made to descend to the widow and children, as therein provided. In this case, the husband did not die intestate, and his property was not affected by the act cited.

The widow and children held, not under the law, but under the will, which gave all the property of the testator to his widow in trust, as prescribed by the will; and it was competent for the court, on a showing of the necessity for the sale of the property to pay the debts of the testator, which he had directed them to pay out of his estate, to order a sale of this land, in preference to other property, which would otherwise have been required to be sold for the payment of debts. Hutch. Code, 675, sect. 2, art. 8.

The fact that some of the children of the testator were minors, and that a guardian ad litem was appointed for them before service of citation on them, did not render the order for a sale of the land void. Until the act of March 5, 1846 (Hutch. Code, 728, sect. 4), no statute of this State required the appointment of a guardian ad litem in any case in the Probate Courts. That statute specified under what circumstances the appointment of such guardian should be necessary to the validity of an order or decree of a Probate Court. It did not include the case of a minor who had no guardian; and although it would seem that in such case, if in any, a guardian ad litem should have been required, we cannot extend the statute beyond its plain terms, especially in view of the uselessness, practically, of the requirement of guardians ad litem. If it be said that the practice of Chancery Courts made it necessary to have a guardian ad litem for an infant defendant, the conclusive answer is, that the statutes instituted and regulated the practice in Probate Courts, and that no statute, prior to that cited, required the appointment of such guardian; and that the statute which thus provided for them for the first time, must be held to have carefully enumerated the instances in which such appointments should be made, and that all others were excluded. But if the rule in Chancery Courts was applicable in the absence of statutory requirement, the entire failure to appoint a guardian ad litem would not have made the order of sale void. Smith and Wife v. Bradley et al., 6 Smed. & M. 485; Learned et al. v. Matthews, 40 Miss. 210. A fortiori, tvould not the premature appointment of such guardian have that effect. It is Vain to urge the necessity for the appointment of guardians ad litem in Probate Courts because they were required by the statute or the practice in Chancery Courts. It is sufficient to reply that the Legislature, in providing for the practice in Probate Courts, did not require a guardian ad litem, except as stated in the act of March 5, 1846, cited above. Burrus v. Burrus, ante, p. 92.

In the case at bar, the minors were duly cited, and the immaterial circumstance that the unnecessary act of appointing a guardian ad litem for them was done before the}' were cited, did not affect the order of sale. The statute (Hutch. Code, 761, sect. 45), unrepealed when this proceeding took place, expressly provides that the Chancery Courts “ shall have power to appoint any person they think fit, to be guardian ad litem to any infant or insane defendant in such suit, whether such infant or insane defendant shall have been served with process or not,” etc. It is just to assume that the act of March 5, 1846, requiring guardians ad litem in certain cases, was passed with due regard to this act as to suits in equity, and that the legislative understanding was, that in those cases in which it was necessary to have a guardian ad litem, he might be appointed before service of process on the infant.

It is true that, by the twenty-second rule of the Superior Court of Chaucery, it is declared that “ no order appointing a guardian ad litem to defend infants will be made until after the return-day of process executed,” etc. ; but that was a mere announcement that the chancellor would not exercise the power of appointment before process executed, which the statute authorized, and did not make void the statute on the subject, which provided that he could.

Therefore, if it were true that the Probate Court was bound by the law applicable to Chancery Courts on this subject, it could not be held that the appointment of a guardian ad litem before process executed on the minors made the decree void.

The case of Stanton v. Pollard, 24 Miss. 154, was an appeal from a decree, and it was reversed because a guardian ad litem for the infant heir, who appealed, had been appointed in disregard of the twenty-second rule of the Chancery Court, and has no bearing on this case. In that case, the statute on the subject, above cited, was entirely overlooked. In the case of McAllister v. Moye et al., 30 Miss. 258, was committed the error of applying the rule announced in Stanton v. Pollard, to the Probate Courts, which we have already noticed.

The fact that the sale made on the 24th of November, 1856, was not reported to the court at its next term, in December, but was made and confirmed at the January term, 1857, did not render the sale void. We know no authority for pronouncing it void on that ground. It is true that in Learned et al. v. Matthews, 40 Miss. 210, there is a dictum to the effect that, unless a' sale is reported to the first term after the sale, no valid confirmation can be decreed without previous notice to the parties whose interests are to be affected by the sale ; but this is plainly obiter, and does not command our adherence or concurrence. It was uncalled for, because in that case the sale had never been confirmed by the court. It is unsatisfactory, because, after a valid decree of sale has been made, and power has been thereby conferred on the executor or administrator to sell and convey land of the decedent, it is impossible to conceive that the mere irregularity of the failure of the executor or administrator, -after he had legally executed the order by selling, to report the sale to the first term, and then secure its confirmation, could render void the valid order or its execution.

We accept as settled by previous decisions that confirmation of a sale was necessary to its completion where a sale was ordered by a Probate Court, although it may well be doubted whether the requirement of the act of November 26, 1821 (Hutch. Code, 667, art. 101), of a report of a sale, was for any other purpose than to preserve the history of the administration, and acquaint the court with the facts of the sale, so as to charge the executor, administrator, etc., and whether any formal confirmation of the sale was contemplated.

We do not concur in the view that the confirmation by the court, of a sale reported at a term subsequent to the next term after the sale, without notice, was void, and left the sale unconfirmed and incomplete, so as to leave the title in the devisees or heirs.

Confirmation of a sale, by the court, is but a signification, in some way, of its approval. Until confirmation, the sale is not complete, — i.e., it is in fieri, ,and subject to the control of the court, —but it is not void. It is a sale which has conferred rights on the purchaser, who may apply to the court for its confirmation, and who is entitled to have it confirmed unless valid reasons against it exist. It cannot be said that the sale is void simply because the approval of the court has been expressed at one time rather than another. The most that can be said is that the sale is still in fieri, so far as to entitle parties in interest to-move the court to set it aside for reasons which they might have urged at the time when it was confirmed. But, aside from this, fit is well settled that confirmation of a sale by the Chancery Court is not necessary where the acts of the parties amount to confirmation. “A confirmation by the parties themselves, by their own acts, is as valid as if by the court.” Tooley v. Gridley et al., 3 Smed. & M. 493; Gowan v. Jones, 10 Smed. & M. 164; Henderson v. Herrod et al., 23 Miss. 434; Mitchell v. Harris, 43 Miss. 314; Redus et al. v. Heyden et al., 43 Miss. 614.

The requirement of a confirmation by the Probate Court of a sale oi’dered by it, and made, in order to complete it, was borrowed from the rule in Chancery Courts ; and, as a confirmation in pais of a sale by decree of a Chancery Court was equally efficacious with a decree of confirmation to validate and complete the sale, so it must be held as to sales made by order of a Probate Court.

In this case, there was a valid order of sale, and the sale was made and reported to the court, and was confirmed by the court, one term of the monthly terms of the court having occurred before the report of the sale was made, and no notice of the report having been given ; and the purchaser paid the price, and the executors made him a deed conveying the land, and he went into possession, and he, and those holding under him, have held it ever since.

The sale must be held to have been confirmed by the acts of the parties.

The parties to the sale were the executors who made it, and the purchaser. The devisees were parties to the proceeding which resulted in the order to sell, and were so interested in the sale as to be entitled to invoke the power of the court to prevent an unfair sale, to the prejudice of their interest; but it cannot be said with propriety that they were parties to the sale. The order to sell, vested power in the executors to sell and convey the land ; and as it was sold, and conveyed, and paid for, and has been held and improved under the title thus obtained, it cannot now be questioned in this collateral manner.

Judgment reversed, and cause remanded for a new trial.