delivered the opinion of the court:
A motion has been made to dismiss the writ of error on the ground of lack of jurisdiction in this court to issue the same, which has been reserved to the hearing. It is contended in support of thе motion, that this being a proceeding under the Guardian act, (Rev. Stat. chap. 64,) it is purely statutory, and the statute having failed to provide for the review of orders entered by the probate court under said statute by writ of error, that the only method by which said order can be reviewed is by the method provided by the statute, which is by appeal, and in support of said contention Kingsbury v. Sperry,
It is first contended that the petition of the defendant in error C. W. James not having been filed on behalf of the minor, it was not such an objection to the report of sale as the court could properly consider. We do not agree with this contention. James was a prospective bidder. He offered, in case the premises were re-sold, to raise the bid of the plaintiff in error $245, and to show his good faith deposited a certified check for $1000 with the clerk of the court to secure his proposed bid. In the Jennings case the objection to the sale and the apprоval of the report of sale was filed by a prospective bidder, who gave a bond to secure his bid, and although in that case the conservator and guardian ad litem afterwards asked that the sale be not approved, we fail to see that such action on their part was necessary to give the court jurisdiction. The county and prоbate courts of this State now largely fill the place once occupied by the courts of chancery with respect to the property of minors, and it is the duty of suсh courts to guard with special care the interests of minors. The probate court, upon its own motion, had the right to refuse to approve the sale if the sale was improperly made, and the fact that its attention was challenged to the fact that the property had been sold for an inadequate sum, by a person who stood reаdy to pay more upon a re-sale than the property had been sold for, did not divest the probate court of power to decline to approve the sale and order a re-sale in case the sale had been improperly made. We do not hold that an interm eddler may appear in the probate court at аny time and object to the confirmation of a guardian’s sale solely because he may think the property was sold for too small an amount, but do hold that when a prosрective bidder at a re-sale appears in court and offers to make a bid in excess of the amount for which the property was sold, and as evidence that his рroposed bid is made in good faith deposits in court, in cash, an amount in excess of the amount of his proposed bid, upon the objection of such proposed bidder the court may properly investigate the question of the propriety of approving the sale, and if it appears that there is legal objection to the approval of the sale, may disapprove the same and order a re-sale of the property.
It is next contended that the probate court abused the discrеtion vested in it by entering the order disapproving the report of sale and ordering a re-sale of the property. In the Jennings case the court affirmed the order of the county court refusing to confirm a conservator’s sale where the sale was regular in all respects, and the only reason for refusing to approve the sale was, that it appeared that on a re-sale the property would bring $400 more than the amount for which it had been sold, as appeared by the conservator’s repоrt of sale, which, in proportion to the value of the property, was an advance of much less than the amount which will be realized at a re-sale of .this propеrty if no more is realized at the sale than the amount of the proffered bid of defendant in error. A guardian’s sale is very analogous to a conservator’s sale, which, as was pointed out in the case last referred to, differs somewhat from judicial sales in general, and what was said in that case, as the facts are substantially the same as in this cаse, with the exception that that was a conservator’s sale, is especially applicable here. On page 91 it is said: “In the case at bar the decree dirеcted the conservator to expose the land at public vendue and to report the sale to the court, and upon approval and record thereоf to execute a deed to the purchaser. The notice of sale followed the decree, stating the terms of sale to be ‘for cash in hand, upon approval of sale by the county court.’ The power of the conservator was derived from the decree, and he could not sell otherwise than according to its terms. It was thе primary duty of the court to watch over and protect the interests of the party whose unfortunate disability had rendered necessary the appointment of a conservator and the sale of his property. Here the sale was ordered to be made subject to the court’s approval. As soon as the report was filed exсeptions were presented, by which it was made to appear that a confirmation of the sale would result in a loss to the estate of Charles M. Boyle of at leаst $400. We are of the opinion that in this case the county court did not abuse its discretion in disapproving the report and ordering a re-sale.”
The general rule is, that judicial sаles will not be set aside for mere inadequacy of price, unless the inadequacy is so gross as to raise a presumption of fraud. (Quigley v. BrecJcenridge,