35 Fla. 518 | Fla. | 1895
Sarah L. Thomas and her husband Robert Thomas brought their bill in equity, in April, 1888, in the Circuit Court of Duval county, against Frederick Leuders, as guardian of said Sarah, John R. Burleigh and wife and J. C. Greeley. The purpose of said bill was to obtain, an accounting, by said Leuders, as guardian, with said Sarah, his ward, she having attained her majority and become a married woman,’ and also to set aside as fraudulent and void a sale of the real estate of said Sarah, made by said Leuders as guardian. The sale attacked was a private one without advertisement. The defendants Burleigh and wife were purchasers of said real estate from Leuders as guardian, and the defendant Greeley was a purchaser from Burleigh and. wife. The court granted both branches of relief prayed for, setting aside the sale of the real estate by Leuders as guardian as void, and decreeing an accounting by him as to his guardianship of the estate of said Sarah. The defendants appeal from this decree.
The sale of the property by the guardian is attacked as having been fraudulently and collusively made, and it is also claimed that the proceedings in the probate court upon which the sale was made were unauthorized by law and were void. The court reaching the conclusion that upon direct attack the sale can not be sustained because illegally made, independent of any question of actual fraud, it is not necessary to consider or state the evidence upon this point. We deem it proper, however, to state that the court is of the opinion that there was not such proof of collusion and actual fraud as would authorize the guardian’s sale to be set aside upon that ground.
As to the legality of the notice of the sale, a question before us, we do not pass upon it, for the reason that, admitting that due and proper notice of application to sell was given as required by law, a private sale was wholly unauthorized by law. The order of sale, after jreciting the presentation of a petition therefor, and the giving of notice thereof, and the determination of the court that the property was unproductive, and that it would be for the best interest of the minor that the same be sold, concluded as follows: “It is ordered, adjudged and decreed that the said Frederick Leuders be and he is hereby authorized and empowered as
The answer of the defendant Greeley stated that he had sold and conveyed the property to a corporation, whose name is given, before the commencement of the suit. This matter was not directly responsive to the bill of complaint, and was put in issue by the replication to the answer. No effort was made to prove the allegation. Neither does the decree by its terms expressly affect such purchaser. In such a state of the case we could not reverse a decree upon the appeal of the parties who were before the court, and as to whom the decree was entirely proper.
There is no error in the record, and the decree of the Circuit Court is affirmed.