| Ark. | Nov 15, 1882
STATEMENT.
This was a proceeding, by certiorari, on complaint of the children and heirs of Erwin O. Buck, against John L. Buck, who had been their guardian, and others interested. The purpose of the writ was to quash the confirmation of some settlements made by the guardian, and also an order of sale, made by the Probate Court, of some real estate of the heirs to pay advances, shown'by the settlements to have been made by the guardian in the maintenance and education of his wards. At the time the application was made by the guardian, to the Probate Court, to sell the property, two of the children had come of age, another was a married woman, and the fourth supporting himself. The petition and other papers sent up with the transcript, together with the receipts in the order, sufficiently disclose that the Probate Court, after allowing large credits to the guardian on successive settlements for expenses incurred on behalf'of the wards, and after the termination of the guardianship as to three of them, made an order of sale of a house and lot belonging to all of them, for the guardian’s payment. Phelps, the purchaser of the property, paid for the same, by giving credit t© the guardian on a debt, and the sale was confirmed.
Upon the return of the writ of certiorari, the cause was heard on the transcript. The Court quashed the order of sale and Phelps appealed.
OPINION.
Errors in the settlements and proceedings are urged by the appellee, of which it is enough to say that if they might .have been corrected upon appeal, they cannot be upon a proceeding by certiorari. (Payne v. McCabe, 37th Ark., 318.) Under the writ the powers of the Court to act in a particular manner may be questioned, and excess or want of jurisdiction corrected, but errors within the scope of its powers, which may be remedied by appeal, must be corrected in that manner. The settlements of the guardian have been confirmed by the Probate Court and cannot now be disturbed save for fraud, or upon some recognized ground of Chancery jurisdiction.
The true question, and only one, is: had the Court power at the time, to order a sale of the property for the re-imbursement of the guardian? Was that within the scope of its jurisdiction?
Doubtless on appliction, pending the guardianship, it had the power to cause the real estate of the wards to be sold for the purpose of completing their education, or for re-imbursement, (Gantt’s Dig. sec’s. 3066, 3073), and we are not prepared to say that it might not do this even after-the expenditures have been incurred, in the exercise of a sound discretion, under fit circumstances. But at the time the order was made the relation of guardian and ward did not exist as to' three of the former wards; and the Court of Probate assumed the power to sell their interests in solido with that of the remaining one, if indeed the last was himself under guardianship, for the purpose of repaying to the guardian what was a mere debt upon settlement.
It seems to us if this practice were encouraged there would be no wholesome bounds within which it could be restrained.: It seems to us that the sections in question have no application beyond matters done in the course of guardianship, and that after it has terminated, the Courts can only close the settlements on the existing state of things, without conferring any continuing powers over their property, to be after-wards exercised by the guardian.
This view has been taken by the Supreme Court of Ohio, in a case relied upon by appellee’s counsel, and which is in point. [Lessee of Perry v. Brainward, 11th Ohio, 442).
The order is not divisible, and there, was plainly excess of jurisdiction.
Affirm.