133 P. 44 | Okla. | 1913
Opinion by
It is first insisted by the defendant in error Wade Enloe that the plaintiff in error F. E. Watkins was not such a party to the proceedings had in the county court as would entitle him to an appeal from the order of confirmation, directing the issuance of a deed to the said Wade Enloe. Our statutes (Comp. Laws 1909, secs. 5451, •5452) authorized an appeal to the district court from any judgment, decree, or order of the county court against or in
Sections 5451 and 5452, as concerns the exact question here presented, are very similar to sections 938 and 963 of the Code of Civil Procedure of California. Construing these sections in connection with section 1553 of the California Statute, which is the same as section 5324, Comp. Laws 1909, it was said by the Supreme Court in Re Pearson's Estate, 98 Cal. 603, 33 Pac. 451:
“The order confirming the sale and directing a conveyance to be made is appealable. Section 963 (3), Code Civil Proc., authorizes .an appeal to be taken from the superior court to the Supreme Court ‘from a judgment or order * * * against or in favor of directing the partition, sale, or conveyance of real property.5 There is no limitation upon the character of the proceeding in which the order directing the conveyance is made, and we are not authorized to limit the right of appeal more than it has been limited by the Legislature. The provisions of section 1553, Id., are not a limitation of the right of filing objections to the confirmation of the sale, but an" extension of such right to those who are ‘interested5 in the estate. The right of the purchaser to be heard at the hearing upon the return is implied in the provision of the previous section,*563 which requires public notice of the clay fixed for the hearing to be given, and his right to be heard carries with it the right to make objection to the confirmation, and section 938, Icl., gives the right of appeal to any party ‘aggrieved’ by the action of the court, whether he be ‘interested’ in the estate or not.”
See, also, Estate of Corwin, 61 Cal. 160; In re Reed’s Estate, 3 Cal. App. 142, 85 Pac. 155; Hammond v. Cailleaud, 111 Cal. 206, 43 Pac. 607, 52 Am. St. Rep. 167; In re Jack’s Estate, 115 Cal. 203, 46 Pac. 1057; In re Griffiths’ Estate, 127 Cal. 543, 59 Pac. 988; In re Robinson’s Estate, 142 Cal. 152, 75 Pac. 777; In re Leonis’ Estate, 138 Cal. 194, 71 Pac. 171; In re Auerbach’s Estate, 23 Utah, 529, 65 Pac. 488. In Re Guardianship of Billy et al., 34 Okla. 120, 124 Pac. 608, this court held that under the fifth subdivision of section 5451, supra, an appeal could be prosecuted to the district court by a purchaser at a guardian’s sale from an order refusing to confirm the sale. The - statute is one that should be liberally construed. In the administration of justice, full opportunity for the review and correction of errors should be afforded, not only to the minor, but to the highest bidder as well. The statute giving the right of appeal to an aggrieved party is sufficiently comprehensive to accord to plaintiff in error an opportunity to have reviewed the decree complained of.
The remaining question for consideration is: Was there an abuse of discretion on the part of the county court in accepting the bid of defendant in error for $5,100, and declining to receive or consider the bid of plaintiff in error for $5,500? Section 5323, Comp. Laws 1909, provides that, upon the hearing of the return of -sale, it becomes the duty of the court to examine said return and witnesses in relation thereto, and if the proceedings had were unfair, or the sum bid disproportionate to the value, and if it appears that a sum exceeding the return bid at least ten per cent, exclusive of the expenses of a new sale, may be obtained, the court may vacate the sale and direct a new one to be had, of which notice must be given, and 'the sale in all respects conducted as if no previous sale had taken
“If there was any further bidding to be done that I would not cry it off at public sale, it was not my policy, didn’t think it was the law.”
It is not in the discretion of the county court to receive increased bids; that duty is mandatory. The statute, however, provides no procedure for receiving competitive bids, other than the original raised bid or bids. While it is not made the duty of the county court to cry off such sales, it is his right to receive all bids submitted- on the hearing, and to afford a sufficient opportunity to all bidders,' or those present desirous of bidding, to submit one or more bids. The object of the statute in allowing increased bids to be filed is that the court may secure as high a price for the land as possible; and if this can be accomplished without the necessity of ordering a new sale, thereby subjecting the estate to additional expense and delay, it is his duty to do so. Immediately upon opening the two bids, that of Enloe for $5,100 and of Watkins for $5,000, the representative of the latter objected to the lands being knocked off to the former, and promptly submitted in writing a further increased bid in the sum of $5,500. This bid the court refused to receive or consider, though it was permitted to be filed. At the time no entry of the order of confirmation to the defendant in error had been made. The whole proceedings occupied the short space of from fifteen to thirty minutes time. We are not disposed to consider technicalities in the manner of closing ■bids, particularly where no procedure is fixed by statute, or '•formal rule of court. Great liberality should be indulged in the manner of receiving bids, to the end that the best price possible may be obtained. The original increased bid of plain-tiff in error caused defendant in error to increase his own bid $1,000, and we think the court should either have accepted the latter bid of the plaintiff in error of $5,500, or in the exercise of a sound judicial discretion ordered a new sale. Clearly
“The provisions in section 1552, giving the court a discretion to accept the offer of an advanced bid, or to order a new sale, does not limit its exercise of that discretion to the alternative of accepting the first offer that may b'e made or ordering a new sale, but it is authorized to receive as many bids as may be made, and, upon a consideration of all the bids, may then determine whether to accept the highest, or to order a new sale. The object of the provision in the above section is that the court may secure as high a price for the property as possible, and, if it can accomplish this result without subjecting the estate to the expense and delay attendant upon a new sale, it would seem to be in the exercise of a wise discretion to permit a competitive bidding for the property at the hearing upon the return.”
See, also, Griffin, Ex’r, v. Warner et al., 48 Cal. 383; Estate of Durham, 49 Cal. 490; Perkins v. Gridley, 50 Cal. 97; In re Jack’s Estate, 115 Cal. 203, 46 Pac. 1057; In re Leonis’ Estate, 138 Cal. 194, 71 Pac. 171; In re Robinson’s Estate, 142 Cal. 152, 75 Pac. 777; In re Reed’s Estate, 3 Cal. App. 142, 85 Pac. 155.
Since the submission of this case it has been brought to our attention that Luther Bohanan, the ward, died in Le Flore county, July 25, 1911, and that on the 27th day of December, 1911, one J. W. Bryan was by the county court of Le Flore county appointed administrator of his estate. Application was filed in this court by said administrator' on April 24th last to revive the cross-appeal prosecuted by W. A. Welch, Jr., guardian of the said Luther Bohanan, in the name of J. W. Bryan, administrator of the estate of Luther Bohanan, deceased, or that the name of said J. W. Bryan, administrator as aforesaid, be substituted in lieu of the name of said W. A. Welch, Jr., guardian of said Luther Bohanan, a minor, and thereupon the said administrator be permitted to prosecute the cross-appeal.
JUNE TERM, 1913. — Vol. XXXVII.
“The foregoing proceeding is unique in this state, and the order made by the trial court cannot find support in the law. The title furnished to a purchaser at the sale by the deed of the guardian would not be worth a dollar. The' proceedings here taken for the sale were had under the Code provisions pertaining to guardianship matters, and as to a sale of real estate those proceedings only contemplate a case where there is a living ward, a living ward not only when the proceedings are inaugurated, but up to and including the moment the deed is made. When the guardian executes the deed, he executes it for and in. the place and stead of his ward, and the moment that ward is dead his power to execute the deed is gone. He has no more power to execute a deed under these circumstances than would an attorney in fact after the death of his principal. It is tin-*568 necessary to consider- here what .a court of equity might do under the circumstances presented by the facts of this case, in aid of the probate jurisdiction of the superior court, for here the statutory procedure laid down in the Code in guardianship proceedings alone has been followed, and the sale is asked under that procedure. The guardian, as such, is attempting to make the sale, and the court is well assured it cannot be done. In Alford v. Halbert, 74 Tex. 354, 12 S. W. 76, a case similar in principle to the one at bar, the court said, in speaking of the efforts of a guardian to recover from the ward's estate the amount found due him by the probate court: ‘We think the only course left her was to administer in the proper court upon the estate of the deceased ward.'''
The decree of. the county court having been stayed, no deed was made in pursuance thereof. None can now be executed on account of the death of the ward, and the cause should be reversed, with instructions to dismiss the petition.
By the Court: It is so ordered.