This action was commenced in the district court of Seminole county, Okla., for the purpose of canceling a guardian's deed to an undivided one-half interest in certain real estate situated in that county and to recover the possession of and quiet the title to the said real estate.
The trial court sustained a demurrer to the plaintiff's second amended petition (thereafter referred to as the petition). Whereupon the plaintiff elected to stand upon the petition, and the action was dismissed. The plaintiff has perfected this appeal for the purpose of reviewing the proceeding before the trial court. The parties appear herein as they appeared before the trial court, and will be referred to as plaintiff and defendant, respectively.
It appears from the petition that the real estate in question was originally allotted to Nicholas Factor, who died intestate in December, 1916, leaving as his sole and only heirs at law his widow, Sallie Factor, and his daughter, Alice Factor, then two years of age.
Sallie Factor was appointed guardian of Alice Factor, the plaintiff in this action. In 1918, pursuant to a petition filed for that purpose, the undivided one-half interest in the land in question belonging to the plaintiff was sold at public sale to J.H. Perkins, and the sale was confirmed by the county court.
The validity of that sale, the confirmation thereof, and the deed executed in connection therewith were collaterally attacked by the plaintiff in the court below on the theory that the publication of the notice of sale was insufficient. The plaintiff in her petition in attacking the sufficiency of the notice said:
"That thereafter there was caused to be printed in the Wewoka Capital Democrat a notice of sale pursuant to said order, which notice of sale fixes the date of sale for Monday the 11th day of March, 1918, at ten o'clock a. m.; that the first publication of said notice appeared in said paper on the 28th day of February, 1918, and the last publication on the 7th day of March, 1918, a copy of which notice, together with the proof thereof, is attached hereto and marked 'Exhibit C' for identification."
"This plaintiff says that said judgment roll discloses affirmatively from the notice and the proof thereof that no notice was published as ordered and as required by law, for two consecutive weeks text preceding the date set for sale, and that 15 days did not elapse between the first insertion of said publication and the date of sale as required by law.
"Plaintiff says that said purported sale was void and of no force and effect for the reason that, as heretofore stated, no proper and lawful notice was given pursuant to the decree of sale, and the county court was without jurisdiction, and said notice was insufficient to vest said county court of jurisdiction to confirm the same; that the judgment roll affirmatively shows these facts; that said proceedings should be set aside, vacated, and held for naught."
The copy of the order confirming the sale attached to the plaintiff's petition discloses that the property was offered for sale and sold to the defendant J.H. Perkins at the time and place mentioned in the notice of sale subject to the confirmation of the court. Also, that thereafter and on April 8, 1918, that being the date of the order of confirmation, a written bid was received from one G.W. Gregg, the sale was re-opened for competitive bidding, and J.H. Perkins increased his bid. As he was the highest bidder therefor, the sale to him was confirmed; the court in the order of confirmation finding:
"That said sale was made after due notice as prescribed by said order of sale; that said purchaser was the highest bidder
therefor, and said sum the highest and best sum bid; that said sale was legally made and fairly conducted, that said sum is not disproportionate to the value of the property sold, and that a sum exceeding such bid at least ten per cent., exclusive of the expense of a new sale, cannot be obtained, and that the said guardian in all things proceeded and conducted and managed such sale as required by the statute in such case made and provided, and as by said order of sale required and directed.
"It is therefore, ordered, adjudged, and decreed by the court that the said sale be, and the same is hereby, confirmed and approved, and declared valid, and the said guardian is directed to execute to said purchaser proper and legal conveyance of said real estate."
Certain statements appear in the amended petition suggesting fraud and inadequacy of consideration as well as a failure to comply with probate rule No. 5 of this court, which was in force at the time of the guardianship sale. However, no question is urged in the brief in connection with this allegation, and the plaintiff is therefore deemed to have abandoned any alleged error in connection therewith. The sole and only question presented by this appeal is whether the guardian's sale and the deed issued in connection therewith are void by reason of an insufficient publication of notice of sale. The case is here solely on the sufficiency of the pleadings, a demurrer having been sustained to the second amended petition and no evidence having been introduced.
The manner and time of publication of the notice of sale is governed by the provisions of section 1277, C. O. S. 1921, section 1286, O. S. 1931, which reads as follows:
"When a sale is ordered to be made at public auction, notice of the time and place of sale must be posted up in three public places in each county in which any part of the land to be sold is situated, and in the county where the order is made, and published in each of said counties in some newspaper printed in the county for two successive weeks. The lands and tenements to be sold must be described with common certainty in the notice. The day of sale must be at least 15 days from the date of the first publication of the notice."
The above statute is made applicable to guardianship sales by virtue of section 1478, C. O. S. 1921, sec. 1474, O. S. 1931.
The petition is silent as to whether the notice in question was posted in three public places as directed by the foregoing statutory provisions, the irregularity relied upon by the plaintiff being the fact that the date of sale as fixed by the notice was less than 15 days from the date of the first publication thereof, and that such notice was not published for two weeks next preceding the date of such sale. The question then is, Does the failure to strictly comply with the statute regulating the time of the publication of the notice of sale render the subsequent sale and the deed issued in connection therewith after confirmation void or voidable upon collateral attack? Almost the identical question was before this court in the case of Tiger v. Drumright et al., 95 Okla. 174,217 P. 453. In that case this court announced the applicable rule of law in syllabus 6, wherein it was said:
"Where land is sold at private sale and notice of sale is published for three consecutive weeks, but was not published for two weeks next before the date designated as the date on or after which the sale was made, and where notices were not posted in three of the most public places in the county where the land was situated, as provided by section 6383, Rev. Laws 1910, such irregularities do not render the sale void and subject to collateral attack."
While this case involves a private sale and the case at bar involves a public sale, it is observed that there is no practical difference in the principle involved and that the holding in that case is controlling in the case now before us.
The decision in the case of Tiger v. Drumright, supra, was based on the previous case of Eaves v. Mullen, 25 Okla.
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This action was commenced in the district court of Seminole county, Okla., for the purpose of canceling a guardian's deed to an undivided one-half interest in certain real estate situated in that county and to recover the possession of and quiet the title to the said real estate.
The trial court sustained a demurrer to the plaintiff's second amended petition (thereafter referred to as the petition). Whereupon the plaintiff elected to stand upon the petition, and the action was dismissed. The plaintiff has perfected this appeal for the purpose of reviewing the proceeding before the trial court. The parties appear herein as they appeared before the trial court, and will be referred to as plaintiff and defendant, respectively.
It appears from the petition that the real estate in question was originally allotted to Nicholas Factor, who died intestate in December, 1916, leaving as his sole and only heirs at law his widow, Sallie Factor, and his daughter, Alice Factor, then two years of age.
Sallie Factor was appointed guardian of Alice Factor, the plaintiff in this action. In 1918, pursuant to a petition filed for that purpose, the undivided one-half interest in the land in question belonging to the plaintiff was sold at public sale to J.H. Perkins, and the sale was confirmed by the county court.
The validity of that sale, the confirmation thereof, and the deed executed in connection therewith were collaterally attacked by the plaintiff in the court below on the theory that the publication of the notice of sale was insufficient. The plaintiff in her petition in attacking the sufficiency of the notice said:
"That thereafter there was caused to be printed in the Wewoka Capital Democrat a notice of sale pursuant to said order, which notice of sale fixes the date of sale for Monday the 11th day of March, 1918, at ten o'clock a. m.; that the first publication of said notice appeared in said paper on the 28th day of February, 1918, and the last publication on the 7th day of March, 1918, a copy of which notice, together with the proof thereof, is attached hereto and marked 'Exhibit C' for identification."
"This plaintiff says that said judgment roll discloses affirmatively from the notice and the proof thereof that no notice was published as ordered and as required by law, for two consecutive weeks text preceding the date set for sale, and that 15 days did not elapse between the first insertion of said publication and the date of sale as required by law.
"Plaintiff says that said purported sale was void and of no force and effect for the reason that, as heretofore stated, no proper and lawful notice was given pursuant to the decree of sale, and the county court was without jurisdiction, and said notice was insufficient to vest said county court of jurisdiction to confirm the same; that the judgment roll affirmatively shows these facts; that said proceedings should be set aside, vacated, and held for naught."
The copy of the order confirming the sale attached to the plaintiff's petition discloses that the property was offered for sale and sold to the defendant J.H. Perkins at the time and place mentioned in the notice of sale subject to the confirmation of the court. Also, that thereafter and on April 8, 1918, that being the date of the order of confirmation, a written bid was received from one G.W. Gregg, the sale was re-opened for competitive bidding, and J.H. Perkins increased his bid. As he was the highest bidder therefor, the sale to him was confirmed; the court in the order of confirmation finding:
"That said sale was made after due notice as prescribed by said order of sale; that said purchaser was the highest bidder
therefor, and said sum the highest and best sum bid; that said sale was legally made and fairly conducted, that said sum is not disproportionate to the value of the property sold, and that a sum exceeding such bid at least ten per cent., exclusive of the expense of a new sale, cannot be obtained, and that the said guardian in all things proceeded and conducted and managed such sale as required by the statute in such case made and provided, and as by said order of sale required and directed.
"It is therefore, ordered, adjudged, and decreed by the court that the said sale be, and the same is hereby, confirmed and approved, and declared valid, and the said guardian is directed to execute to said purchaser proper and legal conveyance of said real estate."
Certain statements appear in the amended petition suggesting fraud and inadequacy of consideration as well as a failure to comply with probate rule No. 5 of this court, which was in force at the time of the guardianship sale. However, no question is urged in the brief in connection with this allegation, and the plaintiff is therefore deemed to have abandoned any alleged error in connection therewith. The sole and only question presented by this appeal is whether the guardian's sale and the deed issued in connection therewith are void by reason of an insufficient publication of notice of sale. The case is here solely on the sufficiency of the pleadings, a demurrer having been sustained to the second amended petition and no evidence having been introduced.
The manner and time of publication of the notice of sale is governed by the provisions of section 1277, C. O. S. 1921, section 1286, O. S. 1931, which reads as follows:
"When a sale is ordered to be made at public auction, notice of the time and place of sale must be posted up in three public places in each county in which any part of the land to be sold is situated, and in the county where the order is made, and published in each of said counties in some newspaper printed in the county for two successive weeks. The lands and tenements to be sold must be described with common certainty in the notice. The day of sale must be at least 15 days from the date of the first publication of the notice."
The above statute is made applicable to guardianship sales by virtue of section 1478, C. O. S. 1921, sec. 1474, O. S. 1931.
The petition is silent as to whether the notice in question was posted in three public places as directed by the foregoing statutory provisions, the irregularity relied upon by the plaintiff being the fact that the date of sale as fixed by the notice was less than 15 days from the date of the first publication thereof, and that such notice was not published for two weeks next preceding the date of such sale. The question then is, Does the failure to strictly comply with the statute regulating the time of the publication of the notice of sale render the subsequent sale and the deed issued in connection therewith after confirmation void or voidable upon collateral attack? Almost the identical question was before this court in the case of Tiger v. Drumright et al., 95 Okla. 174,217 P. 453. In that case this court announced the applicable rule of law in syllabus 6, wherein it was said:
"Where land is sold at private sale and notice of sale is published for three consecutive weeks, but was not published for two weeks next before the date designated as the date on or after which the sale was made, and where notices were not posted in three of the most public places in the county where the land was situated, as provided by section 6383, Rev. Laws 1910, such irregularities do not render the sale void and subject to collateral attack."
While this case involves a private sale and the case at bar involves a public sale, it is observed that there is no practical difference in the principle involved and that the holding in that case is controlling in the case now before us.
The decision in the case of Tiger v. Drumright, supra, was based on the previous case of Eaves v. Mullen, 25 Okla. 679,107 P. 433, wherein this court, in 1910, speaking through Mr. Justice Hayes, held that guardian sale could not be collaterally attacked because the publication of the notice of hearing on the return of sale was insufficient. In that case the doctrine was announced that "defects in the steps of a proceeding made subsequent to the acquiring of jurisdiction of a proceeding for the sale of real estate by a guardian were not fatal to the jurisdiction of the court." That case also stated: "The court obtains jurisdiction of the proceedings, and defects in the proceedings thereafter are irregularities which may be corrected on appeal, but cannot be made the ground of a collateral attack," such defects and irregularities therein being cured by the order of confirmation. The order of confirmation in the case at bar likewise contains the necessary recitals under our statutes to cure any defects in the irregularities as to the notice of sale, the order reading as follows:
"Now on this 8th day of April, 1918, there coming on for hearing the return of sale made by Sally, Seminole Roll No. 141, as the guardian of the estate of Alice Factor,
a minor, and said guardian appearing in person and by her attorneys, Norvell Haulsee, and the court, having examined said return, and having heard and considered the evidence of witnesses offered in support of said return and being fully advised in the premises, finds:
"That in pursuance of said order of sale, said guardian on the 11th day of March, 1918, sold the portion of the real estate of said minor described as follows, to wit: All the right, title, and interest in and to the south half of the southwest quarter of section 18, also described as the southeast quarter of the southwest quarter and lot 4 of section 18; and the north half of the northwest quarter and the southeast quarter of the northwest quarter of section 19, also described as the east half of the northwest quarter and lot one of section 19, all in township 7 north, range 7 east, Seminole county, Oklahoma, and being the entire surplus allotment of Nicholas Factor, deceased, Seminole Indian Roll No. 48, and containing 200 acres, more or less, at public sale to J.H. Perkins upon the following terms, to wit: For the sum of $375 payable as follows: Ten per cent. cash on day of sale and remainder cash on confirmation, and that thereafter on the day of confirmation, to wit: April 8, 1918, the written bid of one G.W. Gregg for the sum of $425 was presented and the bidding was again opened up for competitive bidding and upon such competitive bidding said and was thereafter knocked off to the said J.H. Perkins for the sum of $432, he being the last and highest bidder therefor.
"That said sale was made after due notice as prescribed by said order of sale; that said purchaser was the highest bidder therefor, and said sum the highest and best sum bid; that said sale was legally made and fairly conducted; that said sum is not disproportionate to the value of the property sold, and that a sum exceeding such bid at least ten per cent. exclusive of the expense of a new sale cannot be obtained, and that said guardian in all things proceeded and conducted and managed such sale as required by the statute in such case made and provided, and as by said order of sale required and directed.
"It is therefore, ordered, adjudged and decreed by the court, that the said sale be, and the same is hereby confirmed and approved, and declared valid, and the said guardian is directed to execute to said purchaser proper and legal conveyance of said real estate."
The decision of the Eaves v. Mullen, supra, is a landmark in our jurisprudence, and the principles therein announced have served to shed light upon the legal pathway of this jurisdiction for more than two decades. It has been quoted with approval in many subsequent decisions of this court. In commenting on this opinion we said in White v. Cheatham et al.,101 Okla. 264, 225 P. 533:
"This court, having in the beginning said that the validity of the deed depended upon Whether a compliance with the statute as to giving notice of such hearing is mandatory and jurisdictional, or is directory only,' concluded that compliance with the statute in Oklahoma would not be held jurisdictional. The far-reaching effect of its decision was contemplated and intended, as it will be observed in the closing lines of the court's opinion the court effectively said that the rule it announced should be applied with uniformity to all conveyances made in the state, either before or after its admission to the Union. * * *
"Doubtlessly hundreds of titles, void if we reversed this rule, have been made in this state and sold to innocent purchasers with reliance upon this rule, announced as a rule of property in Eaves v. Mullen."
As a portion of the doctrine of stare decisis, this court recognizes that stability of the law in connection with the real property and stability of the titles to lands in this state depend upon an adherence to the rules of property established by the decisions of this court, and when this court has announced in its previous decisions a doctrine which has for many years been the basis of determining the validity of titles, it is only in the most exceptional cases that the previous rule should be disturbed in any manner. Thousands of titles have been approved in this state on the strength of Tiger v. Drumright, supra, and upon the doctrine announced in the case of Eaves v. Mullen. To overrule these decisions at this time by judicial interpretation retroactive in effect would create Inestimable injury and chaos and uncertainty in connection with the titles to real property. It is, therefore, the opinion of this court that the decision of the trial court should be affirmed.
CULLISON, V. C. J., and ANDREWS, OSBORN, and WELCH, JJ., concur. BAYLESS, J., concurs in conclusion. RILEY, C. J., and SWINDALL and McNEILL, JJ., dissent.