McKinney v. McCullar

Hart, J. In the year 1898 Mrs. M. C. McCaskill, wife of J. M. McCaskill, died seized and possessed of lots seven and eight in block thirty in the town of Rison, Cleveland County, Arkansas, which was her homestead. She left surviving her, Elva E. McCaskill, now Elva E. McCullar, Hugh G. McCaskill and Mary B. McCaskill, minors, as her sole heirs at law. J. M. McCaskill, the father of said minors, was duly appointed as their guardian. ■ On the 17th day of December, 1904, said J. M. McCaskill as such guardian, applied to the-Cleveland Probate Court for an order to exchange said lots for certain other lots in said town of Rison, belonging to N. A. McKinney. On the same day the order was made, and said J. M. McCaskill as said guardian executed a deed to said lots to said McKinney as such guardian, and the exchange was made. The proceedings were approved by said probate court, and N. A. McKinney entered into possession of the lots so conveyed to him. The present suit was brought by Elva E. McGullar, Hugh G. McCaskill and Mary B. McCaskill by her next friend, Hugh G. McCaskill, against said J. M. McCaskill and N. A. McKinney to cancel and set aside said deed. The defendant J. M. McCaskill failed to answer, but made default. The defendant N. A. McKinney answered and admitted that the exchange was made .pursuant to the order of the probate court upon the application of the guardian of the plaintiffs herein; but averred that the exchange was made in good faith, and that said guardian received the full value of said lots, and used the same for the benefit of said minors. The chancellor, after hearing the evidence introduced, found in favor of the plaintiffs, and a decree was accordingly entered, cancelling the deed of said guardian to said McKinney, and that the possession of said premises be restored to said plaintiffs. The defendant McKinney has duly prosecuted an appeal to this court. In the case of Meyer v. Rousseau, 47 Ark. 460, the court held that the probate court has no power to order the lands of a minor to be exchanged for other lands. The decision has never been overruled, and settles the present case. That case decided that an exchange of a minor’s lands by a guardian under an order of the probate court was not a sale of them and said: “Under no state of facts is the probate court authorized by the statute, so far as we have been able to discover, to order the lands of a minor to be exchanged for other lands. The order of the Lincoln Probate Court directing an exchange of appellee’s lands for other lands is void.” There is no evidence that the plaintiffs were ever in possession of the exchanged lands, or that they received any benefits therefrom; consequently, as was said in the case of Meyer v. Rousseau, supra, they are not estopped from disputing the validity of the exchange. It is true that $150 was paid to the guardian of the plaintiff in the exchange, but this was paid to him before the order of court authorizing the exchange was made, and personal security therefor was required and given. Besides, the’ guardian says that only a small part of it was used for the benefit of the minors, and the amount so used is not shown. •Therefore the decree will be affirmed.