Harper v. Wisner , 126 Ark. 443 ( 1916 )

Hart, J.

Joe A. Harper as administrator with the will annexed of the estate of Nannie W. Harper, deceased, prosecutes this appeal to reverse a judgment of the circuit court setting aside a judgment of the probate court ordering the sale of decedent’s lands to pay debts. The material facts are as follows:

On March 2, 1915, Joe A. Harper was appointed administrator with the will annexed of the estate of Nannie W. Harper, deceased. On April 15, 1915, he filed his application for an order to sell a certain forty acres of land belonging to the estate of Nannie W. Harper, deceased, for the purpose of paying off a mortgage which she in her lifetime had executed on said lands and which indebtedness was unpaid at the time of her death. In his petition the land was definitely described in the application for the sale of it. The application bears the following endorsement: “Filed in open court this 15th of April, 1915. The within petition examined and the first day of July term is set for further hearing on this petition. April 17, 1915. C. E. Pringle, Probate Judge.”

Prior to this time the administrator had given no notice whatever of his intended application for the sale of the land. After this time a notice was published in a newspaper published in the county on April 30, 1915, May 7, 1915, May 14, 1915, May 21, 1915, May 28, 1915, stating that a petition had already been filed in the probate court praying an order for the sale for a certain described tract of land. This notice described a different tract of land from that described in the application. At the July, 1915, term of the probate court an order was made by said court granting the petition and ordering the sale of the land described in it. At that time no claims whatever had been probated against the estate. The land was sold pursuant to the order of the probate eourt and a report of sale was made and approved by the court at its October term, 1915. The administrator was directed in the order to collect the amount of sale and settle for the same at the January, 1916, term of the probate court. An appeal from the judgment of the probate court ordering the land sold was prayed by the heirs and legatees of decedent and granted by the probate court within the time allowed by law.

The circuit court held that the probate, court cannot lawfully make an order authorizing administrators to sell the lands of an estate unless prior to his making application therefor he has given the notice required by section 195 of Kirby’s .Digest, and unless the debts for which the order of sale is made have been duly probated against the estate as above stated. The circuit court rendered a judgment denying the application of the administrator to sell the lands and setting aside the judgment of the probate court. The administrator has appealed from the judgment of the circuit court.

It may be noted at the outset that this is a direct and not a collateral attack on the judgment of the probate court ordering the lands to be sold. Section 195 of Kirby’s Digest reads as follows:

“No order for the sale of lands and tenements for the payment of debts shall be made by the court, unless it shall appear to the satisfaction of the court that notice of the intended application for the sale of such lands and tenements has been given, at least four weeks before making such application, in some newspaper printed in the county where the lands lie, if there be any printed in such county, and, if none, by advertise-' ments set up in at least six of the most public places in such county.”

The probate court is authorized by statute to make orders for the sale of lands of the estates of deceased persons, but the order of the sale can only be made in the manner and for the purposes prescribed by .the statute. Planters Mutual Insurance Association v. Harris, 96 Ark. 222.

In the case of Rogers v. Wilson, 13 Ark. 507, the administrator applied for and obtained an order of the probate court empowering him to sell certain lands belonging to hi^ decedent’s estate without giving the notice required by statute. In that case relief was denied because no appeal was taken from the judgment of the probate court ordering the land sold and the action was a collateral attack on the judgment. In that ease, however, the court said that.it was clearly erroneous to have granted the order for the sale of the real estate without first having given the notice required by the statute, but the court said that the order was not void, because it was made in a proceeding.^ rem, for the sale of real estate, which, by our statute, is made assets in the hands of the administrator, and over which, by petition, the probate court had jurisdiction.

In the case of Montgomery and Wife v. Johnson et al, 31 Ark. 74, which was also a collateral attack on the judgment of the probate court ordering the sale of decedent’s lands, the court said, “As a Superior Court, with general jurisdiction and plenary power over the matters committed to its peculiar cognizance, its judgment or order, when acting within the sphere of its jurisdiction, however erroneous it may be, is conclusive as to all persons, until reversed upon review by a higher tribunal, or set aside in a direct proceeding for that purpose; for it is well settled that the judicial sentence of a Superior Court of competent jurisdiction over the subject-matter to which it relates, cannot be attacked or impeached in a collateral proceeding, upon the ground that the court erroneously exercised its powers. (Citing authorities.)”

Again in the case of Livingston, Administrator, v. Cochran, et al, 33 Ark. 294, a bill was filed in the chancery court to set aside an order of the probate court for the sale of land belonging to the estate of a deceased person as being null and void. One of the grounds relied upon was that the administrator had not given public notice of the intended application for the order of sale as required by the statute. The relief prayed for was denied because the court held that the action was a collateral attack upon the judgment of the probate court.

The court said, however, “It was certainly the duty of the executor to give notice as required by the statute, and it was the duty of the probate court to see that the notice had been given before making the order of sale, and the granting of an order of sale without such notice would be an error and ground for reversal of the order on appeal. But when the order comes in question collaterally, as in this case, and not in a direct proceeding to review it, it cannot be treated as null and void because such notice is not shown to have been given, as repeatedly held by this court. (Citing authorities.)”

In the application of these principles to the case at bar we think the judgment of the probate court ordering the sale of the land was erroneous because the notice required by section 195, of Kirby’s Digest, was not given. As we'have already seen probate courts acting through the agency of administrators and executors have jurisdiction in rem of the- property of deceased persons but that jurisdiction can only be exercised in the manner and for the purpose prescribed by the statute. A notice is required by the statute in order that persons interested may have an opportunity to come in before the application is heard and show that the order of sale should not be granted. In the present case, the notice of the intended application required by the statute undertook to describe the land which it stated the petition asked' to be sold and the notice described a wholly different tract of land from that described in the application in the order of sale and subsequent proceedings. As we have already seen the present case is a direct and not a collateral attack on the judgment of the probate court. The judgment of the probate court was erroneous for the reasons already given and the circuit court properly set it aside. The purchaser at the sale became a party to the proceedings at the time he bid in the lands and is bound by the subsequent proceedings in the case. It appears from the record that he has not yet paid the purchase money and it necessarily follows that from there having been an appeal and reversal of the judgment of the probate court, the purchaser is not bound by his obligation for the purchase money.

Another reason given by the circuit court for setting aside the judgment was that at the time of its rendition, no claims had been probated against the estate. The record does show, however, that there was an unprobated debt secured, by a mortgage on the lands which were ordered sold and the question of whether the probate court had jurisdiction to order for the protection of the estate, a sale of land for the purpose of paying off an unprobated debt secured by a mortgage on land of the estate has never been passed upon by this court. See Long v. Hoffman, 103 Ark. 574. Inasmuch as the circuit court was right in setting aside the sale for want of notice as required by the statute, it. becomes unnecessary for us to pass upon the last mentioned question in this case.

The judgment of the circuit court will be affirmed.