Mobbs v. Millard

Hart, J., (after stating the facts). The issues raised by the appeal depend upon the construction to be given section 3793 of . Kirby’s Digest. It was enacted April 8, 1891, and is as follows: “All probate sales of real estate made pursuant to proceedings not in substantial compliance with statutory provisions shall be voidable.” At the time of the sale in question section 3796 of Kirby’s Digest was also in force and provides that “no real estate of any minor shall be sold for less than three-fourths of its appraised value.” The record in the instant case shows that the Sevier Probate Court acquired jurisdiction of the proceedings to sell the land upon a petition by the guardian and that each step in the sale was taken under the supervision of the court and that the sale of the? land was confirmed and the deed of the guardian to the purchaser was approved by the court. Therefore, it is insisted by counsel for appellee that this judgment is conclusive when questioned collaterally.' In the case of Apel v. Kelsey, 52 Ark. 341, the court held: “The doctrine established by previous decisions of this court, that the probate court is one of superior jurisdiction, and that its judgment in the exercise of jurisdiction, rightfully acquired, can not be attacked collaterally, has become a rule of property and is adhered to.” This decision was rendered at the November term, Í889, and the court, speaking through Mr. Justice Sanders, deplored this condition of the law, and in clear and forceful language set forth at length the reasons why the law should be changed in this respect. The learned Justice said that the courts were powerless because former interpretations of the law had become rules of property; but called attention to the fact that the Legislature had the power to render invalid future transactions of this kind. At the next session of the Legislature section 3793 of Kirby’s Digest was enacted. It is reasonably certain then that the Legislature had knowledge of the condition of the law as announced in the case of Apel v. Kelsey, supra, and in response to the suggestion made by the court expressly intended to make a change in the law. If this is not true it is evident that the Act in question can have no force and effect whatever. The words “void” and “voidable” are not always used in statutes with entire legal accuracy, but are sometimes used interchangeably. Their meaning is, therefore, an open question to be decided by the connection in which they are used and the context to carry out the evident intention of the Legislature. Thus it will he seen that in the present statute voidable was manifestly used in the sense of void; else the statute is meaningless. It is plain that if we give the word its technical meaning, the statute makes no change whatever in the law, and the obvious purpose of the statute and the legislative intent will be entirely defeated. Under the law a minor can not act for himself and his guardian is his statutory agent. The requirement that no real estate of any minor shall be sold for less than three-fourths of its appraised value was passed for his protection pursuant to a general principle of public policy. Appraisement means valuation. Thus, it will be seen the Legislature provided a means for fixing in advance the lowest valuation at which a minor’s land can be sold. In the instant case it is conceded that the land was sold for less than three-fourths of its appraised value. It is true the purchaser at the sale now comes in and offers to make up the deficiency; but this he can not be permitted to do if the sale was not valid when made. It was the evident purpose and intention of the Legislature by the passage of section 3793 of Kirby’s Digest to render invalid all sales of real estate which were not made in substantial compliance with the statutory provisions in regard thereto. We think the language used was sufficiently broad and comprehensive to accomplish the purpose intended. We hold that the sale was not in substantial compliance with the statute and is invalid. Therefore, the plaintiff was entitled to maintain this action. We do not wish to be understood as holding that errors and irregularities in making the appraisements or in otherwise complying with the provisions of the statute in regard to the sale would not be a substantial compliance with the provisions thereof. See Harper v. Smith, 89 Ark. 284. But we do hold that an essential requirement of the statute in regard to the sale of a minor’s land can not be entirely omitted and wholly disregarded. It follows that the decree of the chancellor must be reversed and the cause will be remanded for further proceedings not inconsistent with this opinion.