#### HUGHES, Appellant, *v.*GOODALE, Respondent.

(No. 1,367.)

(Submitted November 13, 1901.

Decided November 25, 1901.)

*Guardian and ’Wan'd*— Sale *of Beal Estate.*— Special Bond— *Omission*— Validity *of Sale*— Judgments—Sureties.

1. Probate Practice Act, Sec. 387, Compiled Statutes 1887, provides that a. guardian authorized to sell real estate must, before the sale, give bond to-a probate judge to sell the, same in the manner and to account for the proceeds of the sale as provided for in the chapter. *Held,*that a sale by a guardian duly appointed and qualified, but who omitted to give the special bond required, was not void.

2. *Quaere:*whether, under the Probate Practice Act, Compiled Statutes 1887,. an executor, administrator or guardian is required in every case to give a special bona before making sales of real estate.

3. Sureties on the general bond' of a guardian are liable for any loss which-the ward may suffer by reason of the default of the guardian with respect to the proceeds of sales of real estate.

4. ' The orders and judgments of a court may be voidable for error or irregularity, but such error or irregularity does not of itself avoid such orders, or judgments.

• *Appeal from District Court, Silver Bow County; Willia/m Clancy, Judge.*

Peoceedings by Mary E. Hughes against Charles *W.*Good-ale, as guardian of Francis Arthur Linforth and Geraldine Linforth. -From a judgment for defendaant, plaintiff appeals..

Reversed.

Statement op the Case.

This cause was submitted to the court below upon an agreed, statement showing the following facts: By an order of the district court of- Silver Bow County the defendant was duly appointed guardian of the estates of Francis Arthur Linforth and Geraldine Linforth, minors. Having filed the bond required to -be given by Section 358 of the Probate Practice Act, Compiled Statutes of 1887, and having taken the oath prescribed by law, letters of guardianship were issued to’ him on *94tbie 18tb day oí November, 1890, since which, time he has been, and now is, the qualified and acting guardian. On the 16th day of November, 1893, the district court duly ordered the guardian to sell certain lands owned by his wards in the county of Silver Bow. In pursuance of the order, and on¡ the 4th day of February, 1894, the defendant as guardian sold the lands to the plaintiff for the sum of $1,850. On February 28, 18.94, the court approved and confirmed the sale, whereupon the property was conveyed by deed to the plaintiff. Before the sale the guardian omitted to give the special bond required by Section 381 of the Probate Practice Act, Compiled Statutes of 1881, and has never given the bond provided for therein. , The guardian and his wards threatened and intended to bring’ an action for the purpose of ejecting the plaintiff from the possession, of the property, and to obtain a decree declaring the plaintiff to have n.o title thereto. The parties prayed the court to adjudge from these facts whether the plaintiff was the owner in fee simple of the real estate in question as against the defendant and his wards, and whether the omission of the guardian to give the special sale bond constitutes a cloud upon ¡ the plaintiff’s title. The court below decided that the omission of the guardian to give the bond before the sale rendered, the sale null and void so far as the infants were concerned, and that’ no title passed from them, and that the plaintiff is not the owner of the property. From a judgment-entered in accordance with the views of the court below, the plaintiff prosecutes this appeal.

*Mr. H. Lowndes*Maury, for Appellant

*Mr. William I).*Burbage, for Bespondent.

ME. JUSTICE PIGOTT,

after stating the case, delivered the opinion of the court-.

The single question arising upon the agreed statement is whether the omission of the guardian to give a special bon'd before the sale invalidated the sale authorized by the- order. *95Both parties assume that the provisions of Section 387 of the Probate Practice Act, Compiled Statutes of 1887, require such a bond to be given whenever the sale of a ward’s real'estate is directed to be made. Before proceeding to consider the arguments of counsel based upon this assumption, we deem it not-improper to suggest á possible solution of the ultimate question upon a ground not discussed by counsel. It might be argued, with plausibility at least, that Section 387 does not require a sale bond to be given in all cases. This section provides that “every guardian, authorized to sell real estate must, before the sale, give bond to the probate judge [district judge], with sufficient surety, to be approved by him, with conditions to sell the same in the manner, and to account for the proceeds of the sale, as provided for in this chapter and Chapter VII of this title.’’ Section 388 provides that “all the proceedings under the petitions' of guardians for sales of property of their wards, making orders, rejecting or confirming sales, and reports of sales, ordering and making' conveyances of property sold, accounting and the settlements of accounts, must be had and made as-required by the provisions of this title concerning estates of decedents, unless otherwise specially provided in this chapter.” Section 407 declares that the provisions relative to estates of decedents, so far as they pertain to the practice in the probate or district court-, apply to proceedings touching estates of minors under guardianship. Now, Section 76 of Chapter III, of the title referred to in Section 388, *supra,*after imposing upon the district judge the duty to require an additional bond whenever the sale of lands belonging to a decedent is ordered, proceeds : “But no such additional bond must be required when it satisfactorily appears to the court that, the penalty of the bond given before receiving letters, or of any bond given in the place thereof, is equal to twice the value of the personal property remaining in, or that will come into, the possession of the executor or administrator, including the annual rents, profits, and issues of real estate, and twice the probable amount to be realized on the sale of the real estate to be sold.” If Section *96387 is to be read with and interpreted in tbe light of Section 76, a special bond need not be required of a guardian when, in tbe opinion of tbe court, tbe penal sum mentioned in bis general bond is sufficiently large to cover the items enumerated in Section 76, and affords ample security to tbe waid for the pi’oceeds of tbe intended sale. If this theory be correct, “it is not otherwise specially provided” in the chapter relating to guardians that they must always give a bond before making sales of real estate; hence in tbe case at bar the guardian was under no obligation, so far as the record discloses, to furnish a special bond, for the presumption that the court below properly refrained from requiring a special bond must be indulged. We merely mention this as a possibly correct construction of the statutes. Counsel have not suggested it and we do not decide that the theory advanced is the correct one, nor intimate an opinion upon it, its determination being unnecessary to a decision. For the purposes of this appeal we shall treat Section 387 as unaffected in this regard by Section '76.

The contention of counsel for the defendant is that Section 387 requires a guardian to give a special bond in every case, that the provision is mandatory, and that an omission so to do renders the sale void. Counsel for the plaintiff insists that the requirement is directory only.

The question presented is one of first impression in this court. In *Power*v. Lenoir, 22 Montana 169, 56 Pacific Reporter 106, it was held that the.giving of the general bond required by a guardian by Section 358 of the Probate Practice Act, Compiled Statutes of 1887, is indispensable to the validity of his acts so far as the rights of the ward are concerned, the section providing that “before the order appointing any person guardian under this chapter takes effect, and before letters issue; the judge must require of such person a bond to the minor, with sufficient sureties, to be approved by the judge, and in such sum as he shall order, conditioned that the guardian will faithfully execute the duties of his trust according to law; and the following conditions shall form a part of such bond without *97being expressed therein: First. To make an inventory of all the estate, real and personal, of his ward, that comes to his possession or knowledge, and to return the same within such time as the judge may order. Second. To dispose of and manage the estate according to law and for the best interest of the ward, and faithfully to discharge his trust in relation thereto, and also in relation to the care, custody, and education of the ward. Third. To render an account, on oath, of the property, estate, and moneys of the ward in his hands, and all proceeds or interest derived therefrom, and of the management and disposition of the same, within thi*ee months after his appointment, and at such other times as the court directs, and at the expiration of his trust to settle his accounts with the probate judge, or with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the estate, moneys and effects remaining in his hands, or due from him on such settlement, to the person or persons who are lawfully entitled thereto. Upon filing the bond, duly approved, letter’s of guardianship must issue to the person appointed. In form the letters of guardianship must be substantially the same as letters of administration, and the oath of the guardian must be endorsed thereon, that he will perform the duties of his office as such guardian according to law.” In that case we said: “Section 358 of our probate law plainly and positively provides that, before the order appointing any person guardian takes effect, and before letters issue, the judge must require of such person a bond to the minor, with sufficient sureties. The intention of the legislature could hardly have been more plainly manifested. From the other sections of the statute cited *supra,*it appears that it did not even deem it wise to allow the parent to relieve the guardian of this duty by testamentary direction; for, though a provision is made recognizing the right of parents to select by will the person to whom they wish to intrust the care of their children and their estates (Section 351, *supra),*yet it requires such person so selected (Section 362) to give bond and qualify as other guardians. It is not, therefore, the recognition *98by any court of the relation of guardian and ward that gives it validity, but the fact that the relation has been properly established by a complance with the requirements of the law. A person who purchases the property of a minor, or who seeks to devest him of title to his property, will not be heard to say that the minor is .estopped and concluded by the irresponsible acts and doings of some person who has presumed to act as his guardian without first giving the minor the protection and security the law requires for him. * * * The latter [the ward] is, so to speak, the special favorite of the courts, and the courts will always see that his rights are protected.’’ The de-cisión was that the order appointing a guardian is without effect unless and until the bond required by Section 358 shall have been given. Section *75*of the Probate Practice Act-, Compiled Statutes of 188?, requires that “every person to whom letters testamentary or of administration are directed to issue must, before receiving them,” execute a bond. In *In re Craigie’s Estate,*24 Montana 37 (60 Pac. 495), we intimated, by way of argument, that the failure of the person appointed administrator to give a bond does not ordinarily or usually render void the letters of administration issued to him. It is proper to observe that Section *15*requires a person to whom letters are directed to issue, to execute a bond before receiving them, but does not declare that the order is ineffectual unless the bond be given. The decision ini the *Grcdgie Case*was to the effect that the failure of a public administrator who had duly qualified by giving bond and taking oath, to file an additional bond required by the district judge as further security for the interest of an estate in his hands, did not, *ipso■ facto,*create a vacancy in the office of public administrator, although the statute declared that upon failure of any public administrator to give such bond as might be required by a probate judge, his office should become vacant. Neither of these cases announces a rule which must govern the decision of the case at bar.

If the omission to give a sale bond was sufficient to deprive the court of jurisdiction, the judgment must be affirmed; in *99other words, if the order of sale was invalidated by the omission to give a special- bond, then by the sale the plaintiff took no title as against the minors. If, upon the other hand, the court was clothed with jurisdiction to make the order of sale, and the omission to give the special bond did not deprive the order of its legal force, then the plaintiff by virtue of the confirmation of the sale, followed by the deed of conveyance, acquired all the title which the minors had to the property.

The orders and judgments of a court within its jurisdiction may be voidable for error or irregularity, but such error or irregularity does not, of itself, avoid the orders or judgments. This rule applies to courts of general common-law jurisdiction, to courts of equity, and to inferior courts of limited powers; it is applicable to all courts alike. Whenever it appears that the act done, the order made, or the judgment rendered Avas within the scope of the poAver conferred, jurisdiction must be admitted, and, unless that jurisdiction is shoAvn to have been lost, the act, order, or judgment cannot be characterized as a nullity. Did the omission of the guardian to give a special bond render ineffectual the order of sale and the confirmation, thereof, thereby depriving the court of jurisdiction in the premises ? That the defendant Avas the duly appointed, qualified and acting guardian is conceded; it must be presumed that upon a proper petition and after a hearing the court- ordered the guardian to sell the lands of his Avards; in pursuance of that order the sale Avas made and confirmed; a deed of conveyance was thereupon duly executed by the guardian and delivered to the plaintiff. That the district court had jurisdiction of the class of cases or proceedings to Avhieh the one at bar belongs, and therefore of the subject-matter of this proceeding, and had jurisdiction of the persons of the wards, is also conceded. Its jurisdiction Avas regularly invoked. In making the order of sale its jurisdiction Avas duly exeraised. As Ave have said, the sale Avas not void unless the omission to give a special bond rendered .the order of sal© ineffectual; that is to say, unless the court lost jurisdiction of the subject-matter by the failure of *100the guardián to execute a special sale bond, tbe plaintiff by the sale acquired title to the lands. No mere irregularity, however *great,*can avail the defendant or his wards in such an attach as is here made. Such defect or irregularity cannot, be inquired into by means of a collateral action.

The object sought to be attained by Section 887 is the protection of the financial interests of the ward. Eor any loss which a decedent’s estate may suffer by reason of the failure of an administrator properly to account for and pay over the proceeds of a sale of land, the sureties on his general bond are certainly answerable. This appears by Sections 75 and 76, supra, and we perceive ño reason why, under the statutes of Montana, any different rule should be applied to sureties on the general bond of a guardian. By Section 358- the guardian must execute to the minor a bond with sufficient sureties in such sum as the judge may order, conditioned for the faithful performance of his trust according to law. As appears from the quotation hereinbefore made, the following implied conditions form a part of the bond: “Second. To dispose of and manage; the estate according to law and for the best interest of the ward,’ and faithfully to discharge his trust in relation thereto, and also in relation to the care, custody, and education of the ward. Third. To render an- account, on oath, of the property^ estate, • and moneys of the ward in his hands, and all proceeds or interest derived thereform, and of the management and disposition of the same, within three months after his appointment, and at such other times as the court directs, and at the expira-. tion of his. trust to settle his accounts with the probate judge, of with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the estate, moneys, and effects remaining in his hands, or due from him on such settle^, ment, to the person or persons who are lawfully entitled thereto.” Among the powers and duties of the guardian are the following: To pay all debts of the ward'out of his personal estate and the income óf his real estate, but, if these sources, are insufficient, then out of his real estate, upon obtaining- an.. *101order for its sale, “and disposing of the same in the manner provided in this title for the sale of real' estate of decedents.” (Section 367) ; he must, if the income and profits of the estate be insufficient for the purposes, sell the real estate of his ward upon obtaining an order of the court therefor, and apply so much of the proceeds as may be necessary to the maintenance and support of the ward and his family (Section 369) ; and to sell the ward’s real'estate when it appears for the benefit of the ward to do so, and put the proceeds' out at interest or otherwise reinvest the same (Section *37 †).*These powers are conferred and these correlative duties are imposed upon guardians generally, to be exercised and performed whenever the conditions contemplated by the statute arise; in brief, whenever it appeal’s either necessary or for the benefit of the ward that his real estate or some paid; of it should be sold, the court may grant an order therefor. (Section 386.) To obtain an order to sell, to sell and to account for the avails of the sale ordered, is one of the general duties of the guardian. We think the sureties on such bond of the guardian are liable for any loss which the ward may suffer by reason of the guardian’s failure faithfully to execute the duties of his trust, among which are those pertaining to sales of real estate, and that they are, consequently, liable for his default with respect to the proceeds of such sales. Section 402 of the Probate Practice Act, Compiled Statutes of 188?, authorizes the judge to require a new bond to be given by a guardian whenever he deems it necessary. He may at any time, even after sale, require a new or additional bond. These provisions illustrate the design and show the intention of the legislative assembly in enacting Section 387. This section provides no penalty for the omission to require or give a special bond, nor does it declare that the order of sale depends upon the performance of such a condition subsequent. Nowhere does the statute declare that if a special bond be not given the sale shall not be made, or, if made, shall be void. It is not provided that the order of sale becomes effective only when such special bond is given. In *Stewart*v. *Bailey,*28 Michigan Re*102ports 251, the statute required a special sale boud and provided that in ease of an action relating to any estate sold by a guardian in which the ward should contest the validity of the sale, the sale should not be avoided on account of any irregularity in the proceedings, provided it should appear, among other things, that the guardian gave a special sale bond. This was tantamount to declaring a sale made without bond to be voidable in such an action, and the court so held. The same statutes governed the decision in *Ryder*v. Flanders, 30 Michigan Reports, 336. The interpretation of similar statutes was involved in *McKeever v.*Ball, *71*Indiana Reports, 398 ; *Weld*v. *Johnson Manufacturing Company,*84 Wisconsin Reports, 537, (54 N. W. 335, 998) ; in *Bachelor*v. *Korb,*58 Nebraska Reports, 122, (78 N. W. 485, 76 Am. St. Rep. 70) ; and in *Goldsmith v. Gilliland*(C. C.), 23 Federal Reporter, 645. In *Barber s Administrators*v. *Hopewell*(Ky.), 1 Metcalfe, 260, the statute in force provided that if the guardian failed to give the special bond the sale .should not be made, and “any decree, sale, or conveyance thereof shall be voidand the court held that a sale of lands without giving the special bond rendered the sale a nullity as to the ward. These decisions, owing to the difference between our statutes and those under which they were rendered, are not in point. Other cases seemingly in favor of the defendant’s position may readily be distinguished; for example, *Williams*v. Morton, 38 Maine Reports, 47 (61 Am. Dec. 229), holds that a conveyance of land by the guardian of a ward, under order of a court of probate, vests no title in the grantee unless the guardian shall have given the sale bond required by statute; but the, court so held for the reason that in Maine the general bond of the guardian, did not stand as security for the proper application of the proceeds of a sale of real estate. Such was the condition, likewise, in *Vanderburg*v. Williamson, 52 Mississippi Reports, 233. This is also the basis of the decision in *Lyman*v. *Conkey*(Mass.), 1 Metcalf, 317.

We are of the opinion that the omission of the court to re*103quire and of tbe guardian to give the special sale bond in the case at bar was a mere irregularity in no wise affecting or impairing the jurisdiction of the court which ordered and confirmed the sale. As has already been said, the general bond of the guardian stands as security for the proper application of the proceeds of the sale; the court was clothed with, power to entertain the petition praying for the sale; it had jurisdiction of the subject-matter and of the parties; it made the order of sale; the property was sold, the sale was confirmed, and a conveyance executed. The statute omits to denounce as void, for want of a special bond, a sale made pursuant to such an order. The sale was not void. Many eases support this conclusion. In *Palmer*v. *Oakley,*2 Douglass, 433 (47 Am. Dec. 41), the following language is used: “The last objection to the regularity of the proceedings by the guardian in conducting the sale is, that the notice of sale given was insufficient, and was given before the bond was executed. The statute requires that, before mating sale of any real estate by a guardian, a bond shall be given with sureties* and thirty days’ notice of the intended sale. An oath is also required. The requirement in respect to the bond and notice is contained in a proviso, and may be considered as a limitation or restriction, upon the authority to sell. But does the neglect on the part of the guardian to comply with these several provisions of the statute render the sale absolutely *void,*and can it affect the rights of an innocent *bona fide*purchaser, claiming through the decree authorizing the sale? I think the rights of such, a purchaser, especially after the lapse of so many years, are not to be disturbed in consequence of the failure of the guardian to perform acts m *pais*subsequent to the decree of sale. The acts of the guardian are, in legal contemplation, the acts of the ward, whom he represents; and it cannot now be permitted to the ward to come in and allege the nonfeasance of his guardian, to disturb a title derived from him through such, his legally constituted, representative. All that a purchaser at judicial sale is bound to look to with a view to his protection is to see that the court *104by: whom tbe sale was authorized was empowered to make tbe decree. If tbe court bad tbe power, tbe failure of tbe guardian, as in tbis case, to.fulfill certain directions wbicb tbe law imposed on ber, should not and cannot prejudice the rights acquired by such purchaser. If tbe ward is prejudiced by any neglect on tbe part of the guardian in tbe execution of tbe trust reposed in her, bis remedy is upon ber bond. It never could have been contemplated by tbe legislature that tbe validity of a sale should be made to depend upon tbe observance of those provisions of the law, which are in their nature *directory*to tbe guardian. If such a rule were to obtain, but few purchasers wofild be found at judicial sales; for but few would incur tbe hazard of purchasing and paying their money when tbe purchase so made may, at the distance of ten or fifteen years, be held void, in consequence of a noncompliance by a guardian with tbe requisitions of tbe statute. Such a rule would also operate injuriously on tbe war’d, as upon every sale made the purchaser would take into account tbe hazard be incurs. Tbe best interests of infants require that no unnecessary obstacles should be thrown in the way of obtaining the best possible price for their estates when sold. • If a wrong is done them- by their guardians, they have a full and ample remedy. In tbe case of *Perkins*v. Fairfield, 11 Mass. 227, it was held that a failure by an administrator to give tbe bond required by tbe act of Massachusetts of 1183 before tbe sale of real estate of bis intestate would not invalidate a title derived. through such administrator.” In *Bunce*v. *Bunce,*59 Iowa Reports, 533 (13 N. W. 105), tbe court said: “The remaining objections — the want of a sale bond, and tbe alleged want of approval of tbe sale — may be considered together. .The statute provided that, before a sale can be executed, tbe guardian must give, security. (Revision, Sec. 2556.) Tbe statute also required that tbe sale-must be approved. *(Id.*Sec. 2558.) In tbe absence of a sale bond, it would doubtless be error to approve tbe sale; but, where jurisdiction has attached,- and tbe sale has been approved, it cannot, we' think, be successfully attacked in a collateral pro*105•ceeding by alleging tbe want of a sale bond. The question •raised must be deemed to have been passed on, and whether correctly or incorrectly, the court cannot, we think, in a collateral action, inquire.” This was approved in *Hamiel*v. *Donnelly,*75 Iowa Reports, 93 (39 N. W. 210). The same doctrine or principle is announced in *Perkins*v. *Fairfield,*11 Massachusetts Reports, 227; *Lockhart*v. *John, 7*Pennsylvania State Reports, 137; *Merklein*v. *Trapnell,*34 Pennsylvania State Reports, 42, (75 Am. Dec. 634); *Dixey’s Executors*v. *Laning,*49 Pennsylvania State Reports, 143; *Foster*v. *Birch,*14 Indiana Reports, 445; *Dequindre*v. *Willimis,*31 Indiana Reports, 444. In *Arrowsmith*v. *Harmoning,*42 Ohio State Reports, 254, the court, in approving M*auarr v. Parrish,*26 Ohio State Reports, 636, said: “The decision in *Mauarr*v. *Pairish*was right. The probate court had jurisdiction of the *subject-matter;*— i. *e.*it ivas clothed with authority to order the sale of the lands of a minor on the petition of his guardian; and it is fair to say from the record that notice of filing the petition, provided for by the statute, had been served on the minor, before any order was made in the proceeding, in the manner in such statute provided; and hence, when the order of sale was made, and also when the sale was confirmed, the probate court had not only jurisdiction of the subject-matter, but also the parties. This being true, the order of sale and the order of confirmation, although they may have been erroneous, were not void. ‘The judgment or final order of a court having jurisdiction of the -subject-matter and parties, however erroneous, irregular, or informal such judgment or order may be, is valid until reversed •or set aside, * * * within which rale the orders of pro-hate courts are classed. *(Shroyer*v. *Richmond,*16 Ohio St. 455.) If the judgment or order is erroneous, it may be reversed; if it is irregular or informal, it may be corrected on motion; in neither case, however, is it subject to collateral attack.’ *(Wehrle*v. *Wehrle,*39 Ohio St. 365.) True, *Mauarr*v. *Parrish*is very briefly reported on the question we are consider*106ing. But the strength of an. opinion is not to be determined from its length. Frequently cases are disposed of by the application of principles so firmly settled that the citation of authorities in support of them would be a work of supererogation. The judge delivering the opinion in *Mauarr*v. *Parrish*probably thought the case belonged to that class, and hence the brevity of the report; but the ground of the decision is clearly indicated,- — that is, that, the court having jurisdiction of the subject-matter and parties, the order of sale and the order of confirmation, though they may have been erroneous, were not void,. —and that is sufficient. The record and a brief on each side of the case have remained on file in this court, and we have no-doubt that the question received the careful consideration, as in its decision, in the way stated, it received the concurrence, of every member of this court. And although cases in apparent: opposition to *Maumn*v. *Parrish*have been cited, yet nearly all of them are clearly distinguishable from it, when regard is had to the statutes on which they were based; and *Mauarr*v. *Parrish*is fully supported by *Watts*v. *Cook,*24 Kan. 278; *Bunce*v. *Bunce,*59 Iowa 533, 13 N. W. 705; *Lockhart*v. *John,*7 Pa. St. 137; *Merklein*v. *Trapnell,*30 Pa. St. 42; *Appeal of Thorn,*35 Pa. St. 47; *Dixcys Ex’rs*v. *Laning,*49 Pa. St. 143.” *Watts*v. *Cook,*24 Kansas Reports 278, is also directly in point. The statute of Kansas (Comp. Laws 1879, c. 46. Sec. 15) provided that before any guardian’s sale of lands “can be made or executed, the guardian must give security to the satisfaction of the court, the penalty of which shall- be at least-double the value of the property to be sold, * * conditioned that he will faithfully perform his duties in that respect,, and account for and apply all moneys received by him under the direction of the court.” It was said (Mr. Justice Brewer, Mr. Chief Justice Horton, and Mr. Justice Valentine, composing the court) : “The authorities differ as to the validity of guardians’ sales in the absence of security. Some hold such sales void *(Williams*v. *Morton,*38 Me. 47, 61 Am. Dec. 229), and others merely erroneous *(Lockhart*v. *John,*7 Pa. St. 137; *107
      *Perkins*v. *Fairfield,*11 Mass. 227; *Foster*v. *Birch,*14 Ind. 445). We are inclined to believe tbe latter tbe true rule. Probate courts should cautiously obserye tbe provisions of tbe section quoted, and are greatly negligent in permitting sales on mortgages by guardians -without security; yet we cannot bold that the failure to give security deprives tbe court of jurisdiction. It is an error of a court having competent and full jurisdiction, subject to reversal or avoidance by due proceedings. The absence of the security did not render tbe proceedings void, blit only irregular.” This case was approved in *Howbert*v. *Heyle,*47 Kansas Reports 58 (27 Pac. 116), although tbe judge writing the opinion entertained the view that the decision in *Mauarr*v. *Parrish*was against tbe great weight of authority.

We are satisfied, upon reason as well as by the weight of authority, that the provisions of Section 387 are directory, and hence that the sale was not void because the guardian omitted to give the special bond required thereby. The judgment must therefore be reversed and the cause remanded with directions to the court below to render judgment in favor of the plaintiff, and it is so ordered.

*Reversed and renumded.*