Littlehead v. Mount

Opinion by FOSTER, C. This was an ac- *226 tiom.-.in:. ejectment and- to quiet title commenced by tbe plaintiff in error, as plaintiff;' in tbe district court of Tulsa county, .Okla.; against tbe defendants in error, as defendants. y;:Tbé parties will be referred to as they appeared in tbe court below. •■'From a judgment of tbe trial court sustaining demurrers interposed by tbe défen-dants to tbe second amended petition of tbe plaintiff, tbe plaintiff appeals and assigns as error tbe action of tbe trial court in sustaining, tbe. demurrers, and dismissing her petition. \ It is alleged by tbe plaintiff in her petition that tbe land in controversy was allotted to one William Littlehead, a full blood Greek Indian,.through whom she inherited tbe one-half undivided interest therein, and that tbe .claim of title by tbe defendants is based upon a purported guardian’s sale and deed to her interest therein made on July 12, 1910, ■for a consideration of $345; that said guardian sale and deed was void and did not pass •the title to tbe purchaser at said sale for tbe reason that her interest in tbe allotment ,t>f William Littlehead was sold in a single probate sale proceeding along with her interests, in the allotments, of , six other deceased-.relatives, and that tbe probate court ■of Muskogee county, on May 12, 1910, ordered tbe sale of all tbe right, title, and interest of the plaintiff in the allotment of William Littlehead without knowing what .interest tbe plaintiff owned therein at private sale without causing a valid appraise-ment of the land to be made; that tbe appraisers appointed by tbe county court were by tbe court ordered to appraise the tract ■of land allotted to William Littlehead, as well as to appraise the tracts of land allotted to tbe -other six deceased relatives of tbe plaintiff, but that said appraisers failed to make an appraisement of tbe various tracts ;of land, but attempted to fix the value of the interest of tbe plaintiff therein, and that -this action by the appraisers necessarily resulted in a confirmation by the court of the sale without any appraisement whatever .and ■without the county court being able to know upon confirmation that the bid accepted and confirmed was 90 per cent, of its appraised value. . No fraud is alleged-. The first inquiry is: Gan the probate court make a sale of all the right, title, and interest, undivided or otherwise, in a tract of land belonging to a minor without specifying what proportionate part of the land is owned by such minor? <:No¡oase isnited holding that in a judicial salfe!¡madé by- tbe county court of the lands of á hundí' a description of the interest old, as áli':tlíe' right, title, and interest of the minor therein, is not a sufficient description, except the case of Hill v. Fall, 66 Cal. 130, 4 Pac. 1139, and this cáse' appears to have been- sdbsequently overruled by the Supreme Court of California in’the case of Sepulveda v. Baugh, 16 Pac. 223. The true rule seems to be that a judicial •sale does not depend for its validity upon a judicial ascertainment of the nature and extent of the interest in the land sold, and that a sale of all the right, title, and interest is, .a sufficient description to uphold the sale. Treptow v. Henry Buse et al., 10 Kan. 170; Strawn v. Brady, 84 Okla. 66, 202 Pac. 505; Meyer v. Farquharson et al., 46 Cal. 190. Neither has any case .been .cited in support of the proposition that a probate court has not power to order a salé of an interest in land described as “all right, title,, and interest” at private sale. It must b'e-borne in mind that the county court of Muskogee county was a court of general probate jurisdiction, and we know of no statute which denies to such court the right to sell such an interest at private sale if the-jurisdictional requirement of due ap-praisement has been met, and it will be presumed upon collateral attack, in the absence of fraud, which has not been alleged, that that court acted correctly and with due authority in making the order of sale. Freeman on Judgments, section 124. Nor have any authorities been cited denying to the county court power to order a sale in one proceeding of the interest of one minor in several allottments. The case of Jackson v. Carroll, 86 Okla. 220, 207 Pac. 735, cited by plaintiff, was a case where the county court was denied power to order a sale of the separate allotments of more than one minor in a single sale and upon a single bid, where tbe effect of the order of sale necessarily resulted in the sale of one minor’s property for the benefit of another, and hence cannot be made applicable to this case, where one minor’s interest in several allotments is offered for sale in a single proceeding. This court, subsequently held, however, in the case of Burris et al. v. Straughn, et al., decided July 10, 1923, pending on rehearing, No. 14147, Oklahoma- Appellate Court Re-pórter, 'VJol. 23, No. 2, p. 64 (July 27, 1923.), under facts similar with the facts in Jack *227 son v. Carroll, supra, that a sale of the separate allotments of'more than one minor in a single proceeding upon an order of sale authorizing the sale in one tract did not necessarily result in- a sale of one minor’s property for the benefit of another. There remains for consideration the question- of whether or not the county court of Muskogee county in ordering a sale of all the right, title, and interest of the plaintiff in' the allotment of William Littlehead, and a like interest in six other allotments in the same proceeding, at private sale, and in subsequently approving the sale upon a bid by a purchaser of $345, for her interest in the Littlehead allotment, necessarily approved and confirmed the sale without a valid ap-praisement and without knowing as a matter of fact that the bid received'was 90 per cent, of the appraised value of the interest of the plaintiff in the William Littlehead allotment, within the rule laid down in Winters v. Oklahoma Portland Cement Co., 65 Okla. 132, 164 Pac. 965. We must bear in mind that the county court was a court of general probate jurisdiction, and it should not be held to have lost jurisdiction or to have exceeded its jurisdiction unless it clearly appears that it entered a decree not authorized by law. Pyeatt v. Estus, 72 Okla. 160, 179 Pac. 42; Cornett v. Williams, 20 Wall. (U. S.) 226. It is not alleged in the second amended petition that the court did not know of the share of interest the plaintiff owned in the allotment of William Littlehead at the time of confirmation, and it must be presumed, in the absence of allegations to the contrary, that the county court of Muskogee county had before it a petition filed by the guardian, in - which the nature and extent of the interest of the plaintiff in the allotment of William Littlehead, deceased, was made to appear, and that the court was aware of the amount of such interest. The bare allegation in the petition that the court did not know the nature and extent of this interest, in the absence of fraud, is not sufficient to impeach the records of the county court on collateral attack, if the nature of the case was such that the court upon confirmation in the exercise of its jurisdiction could have known. The action of the board of appraisers in fixing the value of the interest of the plaintiff in the allotment of William Littlehead instead of fixing the value of the land itself did not make it impossible for the court to know upon confirmation that the bid of $345, accepted and confirmed, was 90 per cent, of the appraised value. • It is admitted that both the appraisement ; returned and the-bid .deceived for the, land was $345. We concede that if the result 'Of the appraisement of $345, as the vdlue of the interest of the-plaintiff in the land was to . make it impossible ■ for the court to know ‘upon confirmation that the bid was at'least ' 90 -per cent, of'the'value of the land, that ' the sale would be void. If we are willing to presume that neither the court nor the appraisers upon confirmation knew as a mat- , ter of fact the amount of the interest, of plaintiff in the allotment, we might conclude that the sale was void, but we are unwilling to indulge in such presumption, because it' is the duty of the court to presume that the court acted lawfully, unless the contrary appears from the face of the record! ■ It is conceded if the appraisers had returned an appraisement upon the land itself, . rather than upon the interest of the plain-iff in the land, that it would have been' á . valid appraisement, yet it would have been . necessary before the court could have known that the amount bid was ninety per cent, of >s appraised value to hear evidence as to , the amount of the interest of the plaintiff in the land. In the instant case we must presume that upon the confirmation of the sale, the court examined the appraisers under oath and ascertained from them the amount of the interest they appraised, and that it also ex.amined the bidder and ascertained from him . the amount of the interest upon which he bid, and by this process, .we. must presume that the county- court ascertained the existence. of a 'State 'of facts from which it would appear that .the interest was sold for 90 per cent, of its appraised value. * ■ In the ease of Burris .et al. v. Straughn et al., supra, the court said,, in upholding ,a sale of the allotments of three minors in the county court, where the claim was that the sale was void beeausé the order of sale au'thorized the three allotments'to be made'in one tract and resulted in. the court being unable to determine what the interest, of each minor brought: “ ...... ‘.‘It was proper for the court upon .the hearing oh this return' to : investigate' this matter and ascertain the manner by which the property was sold and the price received for the interest of each minor and having heard the matter and entered the decree confirming the sale, it will be presumed that there was sufficient showing made to the court to justify the finding of the court that the property sold for 90% of its appraised value. There is nothing in the order of confirmation or in the other proceedings which *228 precludes us from presuming tliat the county court properly exercised its jurisdiction and made an order which it was authorized to .make. * * *” We can perceive no obstacle which can prevent the county court on confirmation .from ascertaining the true facts in reference . to the sale, and even though the appraisement itself may have been irregular, in finding that the appraisement was valid and that the interest was sold for 90 per cent, of its appraised value, and we must presume that these things were done, and that the interest was confirmed upon a bid of at least 90 per cent, of the appraised value of the interest. While an appraisement is necessary under our statutes, the sale will not usually be set aside for defects in the form of the appraisement, if an appraisement has in fact been made. In the case of Rice v. Cleghorn, 21 Ind. 80, the Supreme Court of Indiana said: “But it is said that as the appraisement was made prior to the appointment of any administrator, it was a nullity, and could not, therefore, be allowed to constitute a basis upon which to measure the penalty of the bond. This conclusion is not, it seems to us, strictly correct. The appraisers appear to have been duly sworn, and though they were selected by Cleghorn before he became administrator, still the appraisement was merely irregular. “The competency of the appraisers, or that their inventory contained a true estimate of the value of the land, does not seem to have been successfully contested. Having been placed on file, an'd recognized by the court, it was. as an appraisement, within the substantial requirements of the statute.” See also, Noland v. Barrett (Mo.) 26 S. W. 692; Dennis v. Winter, 63 Cal. 17, and Smith v. Biscailuz, (Cal.) 21 Pac. 15. We are of the opinion that the trial court did not err in sustaining the demurrers to plaintiff’s petition. ” Igment of the trial court is therefore affirmed. By the Court: It is so ordered