Seal v. Banes , 168 Okla. 550 ( 1934 )

I am unable to concur in the views and result announced in the majority opinion in this case. The rule approved and applied therein will have a disastrous effect upon many real estate titles in Oklahoma which have long been considered stable and secure. The result is illustrative of the danger which invariably follows an abrupt change by judicial decisions of established rules of law upon which titles to real estate depend. If established rules of law affecting real property are erroneous, any needed change should be accomplished by a legislative act prospective in its operation, rather than by a judicial decision, which is retroactive in effect.

This is a suit in the nature of ejectment and a quiet title action commenced in the district court of Oklahoma county by Kenneth Lee Banes and Maxine Banes, minors, through their guardian, Oscar Cobb. Their mother, who was the natural guardian, and who had their care and custody after the death of their father, filed a petition in the Tulsa county court, as administratrix of the father's estate, to sell the land involved, which land is located in Oklahoma county. Oscar Cobb, grandfather of the children and now their guardian, was principal bondsman of the administratrix. There is no fraud alleged or proved in connection with the sale proceedings and no question of fraud is raised herein. The property was sold to the highest bidder after proper advertisement, and we must assume for its full value, the purchasers assuming and subsequently paying off a mortgage existing against the same, and paying in addition a part cash consideration which was used in paying debts and for the expenses of the last illness of Wilbert A. Banes, deceased. After confirmation of that purchase and delivery of administratrix's deed by the mother of the minors herein, the purchaser entered upon the property. By subsequent purchase the Seals became owners of the same and improved it. Their title was unquestioned for 9 years. When it became valuable after the discovery of oil thereon, this suit was filed to recover possession of two-thirds interest. The majority opinion strikes down the validity of the title because of the manner of service upon the minors of notice of the order for hearing petition for sale of real estate by administratrix. These minors were aged two and four, respectively, at the time of the sale. Notice by publication of the hearing in a legal newspaper was had and the order of sale with reference to the minors recited "that notice of said hearing had been duly made by mailing notice thereof to Maxine Banes and Kenneth Lee Banes residing at No. 1, North Gillette street, Tulsa, Oklahoma."

The legal point involved herein centers around the mailing of the notice to the children at their home where their mother, who was their natural guardian, lived with them. The majority opinion holds the delivery by mail insufficient, and says that the notices should have been personally served on the two minors.

Stripped of all legal verbiage, the effect of the opinion is that Seal's title is void because a kindly-faced mailman making his daily call delivered notices to the minors instead of the notices being placed in their bands by a grim faced deputy sheriff or an armed-to-the-teeth constable clothed with all the pomp and dignity vested in him by the majesty of the law. Or, the opinion holds, in effect, if these minors had been residing in a county other than Tulsa, in which county the administration proceedings were pending, then the delivery of the notices to their address by the mailman would have satisfied the statute and Seal's title would have been good. But under the present state of facts the title remains in the minors. Of course, we know judicially that the two and four year old minors could not have read and understood the notices in question regardless of whether they had been delivered by the deputy sheriff in Tulsa county, or by the mailman had they resided beyond the limits of the Tulsa county line. But, according to the reasoning in the majority opinion, notice by the last method would have had the magical effect of leaving legal title in Seal. Whereas the opinion now vests it in the Banes minors. This is a sort of legal alchemy to which I cannot subscribe. It denotes a legal ability "to sever and divide a hair 'twixt north and northwest side."

It may be argued that the foregoing observations have only a practical appeal, and that they do not bear directly upon the legal problems involved. They do serve, however, to illustrate the failure of the refined legal reasoning upon which the majority opinion is based to take cognizance of the utter absence of a practical distinction between the manner in which the order to show cause was actually served in this case and the manner in which it is said it should have been served in order to constitute a literal compliance with the statute. I do not believe purchasers in good faith for value should be divested of their property by reason of a technical distinction in the manner of service which could have made no distinct difference, either upon the persons served or to the county court having jurisdiction of the estate. The mother, aided by the grandfather, Oscar Cobb, who executed the administratrix's bond, and who now files this suit for the minors, placed the machinery of the courts in operation by filing the petition to sell the land. If the notices had been handed to the children aged two and four in person, as the majority opinion says should have been done, and these notices in turn taken from them by the mother, the whole procedure would have been an idle gesture. Why, through the medium of two infants, should an instrument be returned to a natural guardian who had the instruments issued and who was functioning in the capacity of administratrix of the father's estate, natural guardian and mother, and next of kin having the care and custody, and, presumably, the best interest of her children at heart? Does the stability of land titles in Oklahoma depend upon such a useless legal ritual?

Recognizing, however, that the decision of this court should be rendered upon sound legal reasoning and judicial precedent, I return to a consideration of the fundamental principles of law involved in the case at bar.

Many of our sister states have adopted the principles recognized in the majority opinion. That is, that there must be a literal compliance with the statute in connection with probate sales. If I could turn back the wheels of time for a period of 30 years and consider the question of law presented herein as an original question and decide it herein for the first time, I might without difficulty subscribe to the doctrine announced by the majority of this court. Since that is impossible, and since I believe we have heretofore in this jurisdiction directly and by implication settled the questions involved herein, a sense of judicial duty compels me to announce that the controlling question in this case should be: What is the established law of this state? Not what should the law be? In my judgment, the majority of my associates have committed the serious error of announcing what they believe the law in Oklahoma should be now, and have entirely ignored the established rule of property which we have followed since the decision in the case of Eaves v. Mullen, 25 Okla. 679, 107 P. 437, rendered nearly 24 years ago. That opinion was written by former Chief Justice Samuel W. Hayes, one of the ablest members of this court. It has been followed by the bench and bar of Oklahoma and by the United States Circuit Court of Appeals in construing Oklahoma decisions, and by the Supreme Court of the United States in denying a writ of certiorari. Magnolia Petroleum Co. v. Mayer,58 F.2d 48, certiorari denied Brown v. Magnolia Pet. Co.,289 U.S. 618. The majority opinion, in theory, if not in fact, overrules the doctrine of Eaves v. Mullen, supra, which has been cited and followed in approximately 55 cases since its promulgation. It has become an established, rule of property in this jurisdiction, and its application to the case at bar would settle the question involved and would confirm the title in question in the Seals and recognize their title as an established and vested property right.

The majority opinion herein cites 40 cases from other states and from text-books to show the holdings in other jurisdictions on the question involved herein, and to prove that the Supreme Court of Oklahoma adopted the wrong theory nearly 25 years ago. It attempts to argue around the doctrine of Eaves v. Mullen, supra, which was bottomed upon the doctrine laid down by the United States Supreme Court in the case of Grignon's Lessee v. Astor, 11. L.Ed. 283, nearly 90 years ago.

I believe the original opinion herein, written by justice Bayless and published in 27 P.2d 839, was correct. That opinion was adopted by this court on July 5, 1933, rehearing denied December 19, 1933, then rehearing granted on March 13, 1934, and the majority opinion herein written by Mr. Justice Swindall was adopted by this court on the 15th day of May, 1934. Especially apropos is that part of the opinion (of July 5, 1933) reading as follows:

"We may as well say now that a proceeding for the sale of real estate in an administration or guardianship proceedings is a proceeding in rem. We recognized this rule in the case of Eaves v. Mullen, 25 Okla. 679, 107 P. 433, when we cited with approval and quoted from the case of Grignon's Lessee v. Astor, 2 How. 31.9, 11 L.Ed. 283, which case has been followed by Mohr v. Manierre, 101 U.S. 417, 25 L.Ed. 1052, and Goodrich v. Ferris, 214 U.S. 71, 29 S.Ct. 580, 53 L.Ed. 914. Perhaps some uncertainty existed in the minds of the bar as to whether we intended to adopt and follow this rule, for it was raised in the case of National Exploration Co. v. Robins, 140 Okla. 260,283 P. 236, 238, and we said: 'It is quite generally held that proceedings of this nature are proceedings in rem. * * *' and, later followed it in Jent v. Jent, 145 Okla. 74, 291 P. 529. The Circuit Court of Appeals for the Tenth Circuit has placed the same construction upon our probate laws in the case of Magnolia Petroleum Co. v. Mayer, supra. Therefore, the cases from other jurisdictions cited and relied on by the plaintiffs cannot apply.

"* * * And we have held that such proceedings were in rem and all the world including the minors and their general guardian were parties and subject to the jurisdiction of the said court with relation to said property; therefore, all of the essentials of jurisdiction were present. The notice of the order to hear required to be given did not inhere in the substance of the order to sell, asked to be made, but was merely a step in the procedure.

"We began to hold that after a county court obtains jurisdiction of an administration or guardianship proceedings, irregularities and defects in the steps of the various proceedings had therein, and particularly in the instance of sales, between the acquirement of jurisdiction and the order of confirmation, are cured by the order of confirmation to the extent that the order of confirmation may not be collaterally attacked, in Eaves v. Mullen, supra, and we have since consistently applied this rule. In the very late case of Factor v. Perkins, 164 Okla. 20, 22 P.2d 391, we announced that it had become a rule of property law.

"We do not mean to say that there may not be found in our reported cases isolated cases constituting exceptions to this rule, such as Caulk v. Lowe, 74 Okla. 191, 178 P. 101, where there was no notice at all and the moving parties were guilty of fraud upon the court extrinsic of the record; or Beatty v. Beatty, 114 Okla. 5, 242 P. 766, where there was no notice; or Mullen v. Hawkins., 97 Okla. 30, 222 P. 697, where there was no notice or knowledge on the part of the ward, a minor over 14 years of age, of the pendency of the proceedings, no notice or opportunity to nominate the guardian, the order of sale was made on the same day the petition for authority to sell was filed and entirely without notice, and fraud was shown, extrinsic of the record; or Good v. First Nat. Bank of Roff,88 Okla. 110, 211 P. 1051, where there was a summons served but not served on the husband or a member of his family, but no service of the notice of application to revive after his death, nor was there any service of summons or notice of application to revive upon his wife; or LeClair v. Calls Him,106 Okla. 247, 233 P. 1087, a divorce action in which there was no service of summons, and the purported voluntary entry of appearance was forged; or Pettis v. Johnston, 78 Okla. 277, 190 P. 681, where there was no service of notice and fraud, extrinsic of the record, was alleged and proved; or Jent v. Jent, supra, where the executor was appointed on March 13th, probably without notice, and filed his final report and was discharged on March 19th, only six days later, entirely without notice. The distinction between a complete failure to give notice, and merely defective or irregular notice, has always been observed; and proof of fraud extrinsic of the record has always been permitted to be shown to void a judgment or order tainted thereby, in probate cases as in civil cases. In this case notice was given, although irregular, defective and less than that required by statute, but no fraud is alleged or proved. Therefore the sale in this case cannot be collaterally attacked."

In this dissent I propose to establish: (1) The existence of a recognized rule of law supported by able authority and judicial precedent from many states, including Oklahoma, that proceedings for the sale of real estate are merely an integral part of a larger proceeding in rem (the entire administration of the estate), and that the court has jurisdiction of the res from the institution of the administration. (2) That as a component part of this rule or legal theory notice of an application for an order to sell real estate is directory and not jurisdictional. (3) That in jurisdictions where this principle is recognized an improper notice, or even a total failure to give notice to heirs, does not render a title acquired through administrator's, sale open to a successful collateral attack. (4) That the in rem theory in connection with probate sales has become an established rule of property in Oklahoma. (5) That an application of this rule to the case at bar would confirm the title of Seals herein and recognize the same as an established and vested property right.

It is important to bear in mind the classification of actions with respect to the nature of the court's jurisdiction in administration proceedings. Jurisdiction of a court is the right to bear and decide a controversy; the right to adjudicate concerning the subject-matter in a given case. It may be exercised in one of two modes, in personam or in rem. An action which has for its object a judgment against a person as distinguished from a judgment against property to fix or establish its status is said to be in personam, whereas a proceeding in rem has for its object a judgment against property to determine its status and to provide for a disposition of the property without reference to the title of the individual claimants. 1 R. C. L. 328; Cushing v. Cummings,72 Okla. 176, 179 P. 762.

The distinction is of paramount importance in this case. When an action is in personam the requirements of notice to the individual sought to be subjected to the jurisdiction of the court are rigid and exacting. On the contrary, when the jurisdiction of the court is in rem the seizure of property itself imports a degree of notice to those who may claim to be the owners thereof, and the requirements of other additional notice are extremely liberal. As was said by Mr. Justice Field, speaking for the Supreme Court of the United States, in the case of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, at page 570:

"The law assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale."

A proceeding in rem may also be adversary in its nature. Pennoyer v. Neff, supra. In fact, such proceedings frequently operate to divest owners or claimants of their interest or title in property by subjecting the particular property seized to the payment or satisfaction of a claim or demand. While the use of any property, real or personal, belonging to a decedent in payment of his debts may be said to be adverse to the interest of the heirs, and while the administrator in paying the debts of a decedent from the assets of the estate may be said to be acting adversely to the heirs, yet I am unable to perceive why this adversity of interest does not come into existence at the commencement of the administration proceedings. The heirs must know as a matter of law when an administrator is appointed that the debts of the decedent take precedence over their right to inherit or participate in distribution. They must know that real estate as well as personal property may be subjected to this burden. Having knowledge of duties of an administrator and the fact that one has been appointed and has taken charge of the property of the deceased, I perceive no serious objection to a judicial declaration that the county court has acquired jurisdiction in rem over the property of the deceased for the purposes of administration, which includes the power to sell real estate in order to pay the debts of the deceased; that the method prescribed by statute and the notice provided are merely procedural steps describing the methods in which the jurisdiction in rem previously acquired shall be exercised.

As previously observed, two distinct views have found favor with the courts, but the majority opinion herein recognizes and applies in this case only one. Van Fleet in his admirable work on Collateral Attack recognizes both. The view which the majority of this court now adopts in this case is stated at page 404, paragraph 406. On the other hand, the learned author gives equal prominence to the theory that proceedings for the sale of real estate in administration proceedings are in rem, and notice is not jurisdictional. At page 402, paragraph 405, he states:

"It is held in Alabama, Arkansas, Louisiana, Texas, and Washington, that a proceeding by administrator to sell land is in rem; that the petition gives the jurisdiction, and that thefailure to give the notice or bond prescribed by statute ismerely an error which does not make the proceeding void." (Emphasis mine.)

The principle recognized in the foregoing rule is supported by the following judicial authority; Grignon's Lessee v. Astor, 2 How. 319, 11 L.Ed. 283; Howell v. Hughes, 168 Ala. 460, 53 So. 105; Neville v. Kenney, 125 Ala. 149, 28 So. 452, 82 Am. St. R. 230; Friedman v. Shamblin, 117 Ala. 454, 23 So. 821; Lyons v. Hamner, 84 Ala. 197, 4 So. 26, 5 Am. St. R. 363; Field v. Goldsby, 28 Ala. 218, 65 Am. Dec. 341; Doe v. Riley, 28 Ala. 164, 65 Am. Dec. 334; Wyman v. Campbell, 6 Port. 219, 31 Am. Dec. 677: Apel v. Kelsey, 47 Ark. 413, 2 S.W. 102; Montgomery v. Johnson, 31 Ark. 74; Rogers v. Wilson, 13 Ark. 507; Hatfield v. Richmond, 161 Ky. 3529 170 S.W. 951; Wright v. Steed, 10 La. Ann. 238; Yeakel's Est., 22 Pa. Dist. 617; Blackman v. Mulhall, 191 S.D. 534, 104 N.W. 250; Lyne v. Sanford, 82 Tex. 58,19 S.W. 847, 27 Am. St. R. 852; Heath v. Layne, 62 Tex. 686; Hurley v. Barnard, 48 Tex. 83; George v. Watson, 19 Tex. 354; Littlefield v. Tinsley, 26 Tex. 353; Finch v. Edmonson, 9 Tex. 504; Ryan v. Fergusson, 3 Wn. 356, 28 P. 910.

In the case of Grignon's Lessee v. Astor et al., 2 How. 319, 11 L.Ed. 282, an, administration case involving the validity of a sale of real estate, the highest court of our land said:

"* * * On a proceeding to sell the real estate of an indebted intestate, there are no adversary parties, the proceeding is in rem, the administrator represents the land (11 S. R. 432); they are analogous to proceedings in the admiralty, where the only question of jurisdiction is the power of the court over the thing, the subject-matter before them, without regard to the persons who may have an interest in it; all the world are parties. * * *

"As the jurisdiction of such courts is irrespective of the parties in interest, our inquiry in this case is whether the county court of Brown county had Power to act in the estate of Peter Grignon on the petition of the administrator under the law of Michigan, providing that where the goods and chattels of a decedent are not sufficient to answer his just debts, on representation thereof, and the same being made to appear to the county court where he dwelt, or where his real estate lies, it may license the executor, or administrator, to make sale of so much as will satisfy the debts and legacies."

The case of Grignan's Lessee v. Astor supra, has an added and peculiar significance in this jurisdiction. The doctrines herein announced were expressly approved by this court in Eaves v. Mullen, supra. Justice Hayes, speaking for this court, said in that case:

"By following the rule in Mohr v. Manierre and Grignon's Lessee v. Astor et al., we adopt a rule which may be applied with uniformity to all conveyances in probate proceedings, whether occurring in the Indian Territory or Oklahoma Territory, or in the state after its admission."

The doctrine recognized by the United States Supreme Court in Grignon's Lessee v. Astor and approved by this court nearly a quarter of a century ago is diametrically opposed to the theory upon which the majority opinion is based. The majority opinion attempts to distinguish Eaves v. Mullen on the theory that it involved a guardianship sale. The important fact is overlooked that, although Eaves v. Mullen is a guardianship case, the rule and principle it follows and approves is taken directly from anadministration case, and the rule is expressly declared to be applicable to "all conveyances in probate proceedings" Whichinclude sales and conveyances by administrators.

In the case of Steele v. Kelley, 32 Okla. 547, 122 P. 934, a case involving a collateral attack on administration sale arising under the law of Indian Territory, we expressly approved again the doctrine of Grignon's Lessee v. Astor et al., supra, and Eaves v. Mullen, supra, as applicable toadministration proceedings, and applied it in holding that a demurrer should have been sustained to a petition in which it was alleged in attacking the probate sale that "plaintiffs had no notice either actual or constructive of said proceedings until long after the sale of said property." This decision, written by Judge Sharp, follows only two years after that of Eaves v. Mullen. With reference to the fact that the statute had not been complied with regarding notice to certain heirs or devisees who sought to cancel the adminstrator's deed, Judge Sharp, at considerable length, outlined and approved the Arkansas decisions, quoting particularly from Rogers v. Wilson,13 Ark. 507, as follows:

"And although 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, the order was not void, because it was made in a proceeding in rem, for the sale of the estate, which, by our statute, is made assets in the hands of the administrator, and over which by petition the probate court had jurisdiction, and further, and although after the sale of the said property shall have been made, the court might not feel at liberty in most instances to disturb the sale, but would leave the heir, if aggrieved, for his recourse over against the administrator, yet before the sale, there can, we apprehend, be no very good reason why the administrator cannot be restrained from perpetrating the wrong complained of."

Judge Sharp then refers to the case of Sturdy v. Jacoway,19 Ark. 510, as the leading case, quoting therefrom as follows:

" 'That an order of the probate court for the sale of the real estate of a deceased person is a judgment in rem, and, being the judgment of a court of competent jurisdiction upon a set of facts within the scope of its legitimate powers, imports the necessity for the sale and cannot be adjudged and hold for naught collaterally upon the ground that the court erroneously exercised its powers; nor can the proceedings and sale under such judgment or order, reported to and confirmed by the probate court, be impeached collaterally; nor the title called in question for any omission in obtaining the order for sale or other irregularity'."

From the later case of Montgomery v. Johnson, 31 Ark. 74, Judge Sharp quotes:

" '* * * The administration of the deceased person is committed to the jurisdiction of the courts of probate, and upon the grant of letters testamentary, or of administration, the court acquires jurisdiction of the estate and proceeds in rem."

In the recent case of Estes v. Pickard, 144 Okla. 60,283 P. 1004, the doctrine of Eaves v. Mullen was again applied with approval to an attack upon an administration sale ill which the sufficiency of the notice to support the sale proceedings was questioned, and in which minor heirs were asserting a sale should be declared void for the reason among others that they did not receive notice. The sale was held valid.

I maintain that in the face of the foregoing landmark decisions the lawyers of this state, in passing upon the marketability of titles which depended upon administration sales of decedents' property, were justified in believing that a rule of property had been established to the effect that proceedings for the sale of property by administrators under order of court were proceedings in rem, and an integral part of a larger proceedings in rem, namely, the administration of the estate, and that a failure to strictly and literally follow the provisions of the statute respecting notice did not affect the jurisdiction of the court, nor render the title acquired void when attacked in a collateral proceedings.

The majority of this court by its decision Says, ill effect, that the lawyers of this state were not justified in proceeding on such an assumption. The answer to that contention is found in the decisions of the federal court in cases arising in this jurisdiction. That court, like Oklahoma attorneys, attaches controlling importance to the decisions of this court upon questions involving the state law. In the case of Magnolia Pet. Co. v. Mayer et al., 58 F.2d 48, the Circuit Court of the Tenth Circuit, speaking through Judge Cotteral, a renowned jurist of years of previous experience in the Oklahoma practice, in passing upon the validity of an administration sale concluded in Oklahoma, said:

"However, the fact of service was not necessary to the validity of the sale, and it is wholly immaterial whether George McGowan and Ollie Brown were parties to or mentioned in the proceedings. As ruled in Grignon's Lessee v. Astor, supra, 'on a proceeding to sell the real estate of an indebted intestate, there are no adversary parties, the proceeding is in rein, the administrator represents the land, * * * they are analogous to proceedings in the admiralty, where the only question of jurisdiction is the * * * power over the thing, the subject-matter before them, without regard to the persons who may have an interest in it; all the world are parties.' This doctrine was reaffirmed in Mohr v. Manierre, 101 U.S. 417, 25 L.Ed. 1052. It was also followed and adopted as the law of Oklahoma in Eaves v. Mullen, 25 Okla. 679, 107 P. 433, approved in many later decisions of the state court. And it was applied with full force and effect by this court in Weston v. Poland, 48 F.2d 738, and Clark v. Anthis,51 F.2d 42. Notice in the steps taken for the sale of the land in question was a procedural matter, and it did not affect the jurisdiction of the county court to direct and confirm the sale."

Certiorari was denied by the Supreme Court of the United States, Brown v. Magnolia Pet. Co., 289 U.S. 618, 77 L.Ed. 536. No better proof could be made as to the established law of Oklahoma as understood by the bench and bar of this state.

Judge Clotteral had before him in the Magnolia Case the identical question presented here. The administrator was appointed and filed petition to sell real estate. Some of the heirs were not notified and were not even named in the petition to sell the land, and they contend "There was a want of the jurisdictional notice to them in the sale proceedings, and the two heirs not named in the will asserted the sale was also, invalid because they, were not parties to the proceedings." In other words, in that case the heirs had no notice at all. The court, however, held the sale valid. The United States Circuit Court said this was a proceeding in rem; that the administrator operated upon the land under his supervision, and that the failure to give notice was not jurisdictional.

In repudiating the opinion in the Magnolia Petroleum Case, supra, and the application of the doctrine in the case of Eaves v. Mullen, the majority opinion herein says:

"We do not agree with the Circuit Court of appeals of the United States that under our probate law that the special proceeding by petition to sell real property upon notice and an order after a hearing to pay debts of an estate and expenses of administration is a proceeding in rem, and refuse to follow the rule upon that issue as declared by that court. We havecarefully considered our probate law and that of many otherstates and the opinions of said states construing similar lawsand adhere to the views of those courts which hold theproceeding adversary, so far as the heirs are concerned, andnotice to them jurisdictional. It is a well established rule of law that the federal courts are bound to follow the decisions of the highest courts of the state upon questions relating to the construction of the state Constitution, of the validity thereunder of state statutes." (Emphasis mine.)

I believe it is inconsistent for this court to criticise an opinion of a federal court rendered on appeal when that court has followed the previous decisions of this court. More particularly when the criticism breaks down the barrier of the doctrine of collateral attack.

The majority opinion herein, in syllabus 6, says:

"A general finding or recital in a judgment or order of a court of record, of due service of process, or notice, is limited by and restricted to the process or notice, if any there be, actually found in the record; and the validity of the judgment or order will depend on the sufficiency of such process or notice and service thereof."

For the purpose of comparison and illustrative of the conflict in principle between the case at bar and the rule heretofore recognized and followed by this court, we quote from Eaves v. Mullen, syllabus 6:

"A decree confirming a sale at public auction by the guardian of his ward's real estate, made upon a hearing of the return, brought on before the first day of the next term of the county court after such sale, is not rendered void on collateral attack because notice of such hearing was given only 9 days instead of 10 as directed by order of the court fixing the date of such hearing and as provided by sections 1852 and 1667, Wilson's Rev. Ann. St. Okla. 1903."

The majority opinion adopts an alleged distinction between a guardianship's and administrator's sale. It is therein stated:

"The distinction between sales made by an administrator under a special proceeding in the administration proceedings to pay debts of the estate and the expenses of administration, and the proceedings by a guardian to sell his ward's land for the purpose of supporting and educating the minor or re-investing the funds in other property, is clearly pointed out in the case of Scarf v. Aldrich (Cal.) 32 P. 325, and Hunter v. Buchanan et al. (Neb.) 127 N.W. 166, and cases there considered."

"Some of the opinions from other states considered and discussed in this case disclose that under the laws of those states, provision is made for appointing a guardian ad litem for the minors. Under the statutes of some of the states it is mandatory. That issue is not involved in the case at bar and we are not passing upon it."

This alleged distinction is an innovation in our law. As the majority opinion reflects, it is borrowed from the decisions of other states. It is now injected into the law of this state for the first time to become a disturbing element in connection with real estate titles heretofore regarded as stable by reason of the previous adherence of this court to the doctrine that no such distinction heretofore existed in this jurisdiction, the sales in both instances being recognized as proceedings in rem. This judicial child reared and nourished in other states is now being adopted in our own, supplanting, in our legal affections the natural offspring of the pioneers of judicial precedent in this jurisdiction.

With reference to stability of land titles in Oklahoma, the majority opinion says:

"Counsel for defendants contend that the stability of land titles is the paramount issue in cases of this nature. The question is, Whose land titles? Is it the land title of the helpless minors? * * * Or is it the land title of the purchaser who buys the property at administration sale? * * *"

While there is no fraud, as in the instant case, this question has been answered in hundreds of decisions. The stability of land titles refers to the title of the purchaser in good faith for value who enters upon the property with a feeling of security relying upon previous decisions that his title will not be disturbed. As was said in White v. Cheatham,101 Okla. 264, 225 P. 533, wherein this court said:

"Doubtless hundreds of titles, void if we reverse 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."

In Dill v. Stephens, 141 Okla. 24, 284 P. 60, the Eaves v. Mullen rule was again announced as a long-standing rule of property. In Factor v. Perkins, 164 Okla. 20, 22 P.2d 391, in referring to the doctrine of stare decisis, this court said:

"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."

Where decisions of a court of last resort have been accepted and acted upon for a long time as the interpretation of the law, courts should be slow to interfere with the principle announced in former decisions even though it might decide otherwise were the question involved one of original interpretation. Justice Hayes, in Eaves v. Mullen, supra, cited Grignon's Lessee v. Astor, supra, from which case we quote, as follows:

"We do not deem it necessary, now or hereafter, to retrace the reasons or the authorities on which the decisions of this court in that, or the cases which preceded it, rested; they are founded on the oldest and most sacred principles of the common law. Time has consecrated them; the courts of the states have followed, and this court has never departed from them. They are rules of property, on which the repose of the country depends; titles acquired under the proceedings of courts of competent jurisdiction must be deemed inviolable in collateral action, or none can know what is his own; and there are no judicial sales around which greater sanctity ought to be placed, than those made of the estates of decedents, by order of those courts to whom the laws of the states confide full jurisdiction over the subjects."

In conclusion I reiterate that the recognized rule of law in Oklahoma in probate proceedings for the sale of real estate, including both guardian and administration sales, are proceedings in rem; that the rule as to notice of an application for an order to sell real estate by guardian or administrator is directory and not jurisdictional; that since this principle has been recognized by our courts, an improper notice does not render a title acquired through administrator's sale open to successful collateral attack; that Oklahoma is one of the jurisdictions in which this rule has been recognized for a quarter of a century, and that the same has become an established rule of property in this jurisdiction; that an application of this rule to the case at bar would confirm the title of Seals herein and recognize the same as an established and vested property right.

The majority opinion places considerable stress upon "due process of law," asserting that service of the notice upon the minors in literal compliance with the statute was, required thereby. If the major premise of the majority opinion is accepted as correct and the proceedings to sell real estate be recognized as a proceedings separate and distinct from the general course of administration, "due process of law" is a proper subject of consideration in connection with the requirement of notice. This for the reason that the notice required by due process of law has reference to the original notice by which the court acquires jurisdiction. It has no application, however, to proceedings had in the exercise of a jurisdiction already acquired. Thus, in this case, if we should follow the previous rule recognized in this jurisdiction and hold in this case that the proceedings to sell real estate are merely an integral part of a larger proceeding in rem (the administration of the estate), it would follow that the notice of hearing on application to sell real estate would be merely one step in the exercise of jurisdiction already acquired. Under the theory, "due process of law" would have no application to the notice herein involved and would be eliminated as an important or deciding factor. I deem it unnecessary to further discuss that phase of the case. And while I have not discussed the question of the equitable principles involved herein, I deem it proper to observe that the property recovered by the minors in this case was heavily encumbered by mortgage at the time of the probate sale and the minors under any circumstances could have inherited only an equity of questionable value. It is not even argued that the estate did not receive the full value of the property at the administration sale; nor is it urged that it was possible to pay the debts of the decedent without a sale of the property; nor was any actual fraud perpetrated in procuring or conducting the sale.

It is only in the most extreme cases that this court should render a decision which is inequitable, and such decisions should be limited to cases where it is essential to uphold an established and fundamental rule or principle of law. I do not feel that such a decision is warranted in this case, where, in order to arrive at a result I believe to be inequitable, we break down an established rule of property upon which not only rests the title of Seals, but the title of many others in this jurisdiction. Furthermore, I believe that the majority opinion in this case will cast a cloud on thousands of titles in this state and result in a flood of uncalled for litigation. The remarks of Van Fleet made 40 years ago are as potent today as they were when written. He said, in his work on Collateral Attack, page 3:

"It is the duty of the courts to set their faces against all collateral assaults on judicial proceedings for two reasons, namely: First. Not one case in a hundred has any merits in it. The reader of this work will see that innocent purchasers, by means of collateral assaults on their titles derived through judicial proceedings, have been compelled to yield millions to dishonest debtors on account of bald technicalities that caused no actual harm whatever, and that, by the same means, criminals who have been fairly tried and justly convicted and sentenced, have caused untold vexation and expense to innocent prosecutors and officers. An old case said: 'Judges will invent reasons and means to make acts according to the just intent of the parties, and to avoid wrong and injury which by rigid rules might be wrought out of the act.' When the court can plainly see that a dishonest debtor or criminal is attempting to use it as a tool to wrest property from innocent purchasers, or to punish honest people, the judge ought to be astute in inventing reasons to thwart him. Second. The second reason why the courts should reduce the chances for a successful collateral attack to the lowest minimum is, that they bring the courts themselves into disrepute. Many people look upon the courts as places where jugglery and smartness are substituted for justice, and nothing tends more to increase their numbers than to see their property and rights, held under the solemn adjudications of the courts, snatched away on account of some defect or omission in a summons, or return of service, or petition, which caused no actual harm to any one. Such things tend to weaken law and order and to cause men to settle their rights by violence. For these reasons, when the judgment rendered did not exceed the possible power of the court, and the notice was sufficient to put the defendant upon inquiry, a court should hesitate long before holding the proceeding void collaterally. * * *

"Where a court has erroneously held that certain things were sufficient to give jurisdiction, and titles have been built thereon, the doctrine of stare decisis forbids the overruling of those decisions."

For the reasons herein stated, I respectfully dissent.

I am authorized to say that justice BAYLESS concurs in this dissent.