f. Confirmation cannot be had unless ninety per cent. of the appraised value is bid.

§ 184. Petition for sale of the real estate of a minor.The averments necessary to be included in a petition for the sale of the real estate of a minor are fixed by statute.2* There is a substantial variance in the statutory requirements in the different jurisdictions. In Oklahoma, and states having similar statutes, the jurisdiction of the courts to order the sale is invoked by filing a petition in the court in which the guardianship proceeding is pending. Under the statute the petition to sell should contain an accurate description of the land, one or more of the statutory grounds authorizing or permitting the sale of such real estate and such a showing as to the condition of the estate as to render it necessary or advisable that the court make the order.25 The petition should also, though it is not jurisdictional, set forth the names of the next of kin and of all persons interested in the estate, and, if a private sale is desired, the reasons therefor, and a prayer that the same be ordered. The petition must be verified. In other words, the petition must set forth the condition of the estate and the facts and circumstances on which the application is based, showing the necessity for or expediency of ordering such sale.

A proceeding to sell the real estate of a minor, under the Oklahoma statutes, for his support, maintenance and education, or for investment, is in no sense adverse to the minor. It is a proceeding by the minor through the guardian for his benefit.26 This being true, and the juris

24 Rev. Laws 1910, § 6557.

25 Fitch v. Miller, 20 Cal. 352; Smith v. Biscailuz, 83 Cal. 344, 21 Pac. 15, 23 Pac. 314; In re Hamilton's Estate, 120 Cal. 421, 52 Pac. 708; Scarf v. Aldrich, 97 Cal. 360, 32 Pac. 324, 33 Am. St. Rep. 190; In re Boland's Estate, 55 Cal. 310; Richardson v. Butler, 82 Cal. 174, 23 Pac. 9, 16 Am. St. Rep. 101; Gager v. Henry, 5 Sawy. 237, 9 Fed. Cas. 1041; Howard v. Bryan, 133 Cal. 257, 65 Pac. 462; Walker v. Goldsmith, 14 Or. 125, 12 Pac. 537.

26 Eaves v. Mullen, 25 Okl. 679, 107 Pac. 433; Grignon v. Astor, 2

diction of the court being properly invoked by the filing of a petition containing the necessary averments, subsequent irregularities do not destroy the jurisdiction thus vested, or affect the validity of a title passing under a duly confirmed sale.

A petition for an order to sell the real estate of a minor to pay debts may, at first appearance, seem to be a proceeding adverse to the minor; but inasmuch as it is a voluntary one, prosecuted by the ward, upon application of his guardian, there is little justification for holding that it is an adversary proceeding.

The averments in the petition for sale should be liberally construed for the protection of the bona fide purchaser at a sale made pursuant thereto. Technical defects in the petition should not avail to defeat a title thus acquired.

§ 185. Hearing and order to show cause.-If upon hearing it appear to the court, or judge, from the petition that it is necessary, or would be beneficial to the ward, that the real estate, or some part thereof, should be sold, the judge must make an order directing the next of kin of the ward and all persons interested in the estate to appear before the court at a time and place therein specified, not less than four nor more than eight weeks from the time of making such order, unless such notice is waived, to show cause why an order should not be granted for the sale of such estate. 27 The statute does not contemplate a further investigation at this time than an examination of the petition to ascertain whether it appears therefrom

How. 319, 11 L. Ed. 283; Mohr v. Manierre, 10 U. S. 417, 25 L. Ed. 1052; Thaw v. Falls, 136 U. S. 548, 10 Sup. Ct 1037, 34 L. Ed. 531; Fleming v. Johnson, 26 Ark. 421; Guynn v. McCauley, 32 Ark. 97; Currie v. Franklin, 51 Ark. 338, 11 S. W. 477; Beidler v. Friedell, 44 Ark. 411; Blackman v. Mulhall, 19 S. D. 534, 104 N. W. 250; Perkins v. Gridley, 50 Cal. 97; Scarf v. Aldrich, 97 Cal. 360, 32 Pac. 324, 33 Am. St. Rep. 190; Zilmer v. Gerichten, 111 Cal. 73, 43 Pac. 408; Bradford v. Larkin, 57 Kan. 90, 45 Pac. 69; Mortgage Trust Co. of Pennsylvania v. Redd, 38 Colo. 458, 88 Pac. 476, 8 L. R. A. (N. S.) 1215, 120 Am. St. Rep. 132.

27 Rev. Laws 1910, § 6558.

that the necessary jurisdictional facts are alleged and that it would be beneficial to the ward that the real estate, or some part thereof, be sold. Prior to to the 17th day of June, 1910, there was no provision for the waiver of the notice required by this statute. There does not, however, seem to be any reason why such notice might not, in the absence of a statute, have been waived.

§ 186. Service of notice of hearing on order to show cause prior to June 17, 1910.-The persons required to be notified and the method of giving the notice prescribed in the following section applies subsequent to June 17, 1910. Prior to that date the statute required a copy of the order to show cause against the sale of the real estate of a minor to be personally served on the next of kin of the ward, and all persons interested in the estate, at least fourteen days before the hearing of the petition, or to be published at least three successive weeks in a newspaper printed in the county, and if there be no newspaper printed in the county then in such newspaper as may be specified in the order to show cause.28 The consent in writing of all persons interested in the real estate, and the next of kin, constituted a waiver of the necessity of service of any character and the order might be made upon such waiver immediately, without the service of notice of any character.29

It will be observed that the notice is required to be served upon the next of kin, and all persons interested in the estate. The time fixed in the notice must not be less than four nor more than eight weeks from the making of the order. The notice may be served either personally or by publication. If service is personal it must be completed not less than fourteen days before the hearing, and if by publication it must be published at least three successive weeks before the hearing.

28 Comp. Laws 1909, § 5504.

29 Scarf v. Aldrich, 97 Cal. 360, 32 Pac. 824, 33 Am. St. Rep. 190; Conklin v. La Dow, 33 Or. 354, 54 Pac. 218; Mortgage Trust Co. of Pennsylvania v. Redd, 38 Colo. 458, 88 Pac. 473, 8 L. R. A. (N. S.) 1215, 120 Am. St. Rep. 132.

The proceeding to sell not being adverse to the minor, notice of hearing is not jurisdictional. The minor is in court by the petition of his guardian, and by such petition the property is submitted to the jurisdiction of the court.3

30

§ 187. Service of notice of hearing of order to show cause subsequent to June 17, 1910.-The statute 31 requires. the county judge to cause copies of the order to show cause to be posted in three public places in the county, one of which shall be at the court house door where said hearing is to be held, and to be personally served on the next of kin of the ward, and all other persons interested in the estate of the ward, residing in the county, and to be mailed to all such persons who are nonresidents of the county, with the postage prepaid, at least fourteen days before the hearing on the petition. If the post office of any person required to be served with notice of the order is unknown, a copy of the order must be published for two consecutive weeks in some newspaper published in the county, and the hearing on the petition shall not be less than fourteen days from the date of the first publication of such notice. The statute, however, provides that if written consent to the order making the sale is subscribed by all persons interested therein, and the next of kin, hearing may be had at once and without giving the notice above required.82

To what extent the notice required to be given is jurisdictional has been the source of no little controversy. The cases, with few exceptions, hold that the jurisdiction of the court is invoked by filing a petition containing proper averments, and that the proceeding is one by and not against

30 Eaves v. Mullen, 25 Okl. 679, 107 Pac. 433; Scarf v. Aldrich, 97 Cal. 360, 32 Pac. 824, 33 Am. St. Rep. 190; Mulford v. Beveridge, 78 Ill. 455; Mohr v. Porter, 51 Wis. 487, 8 N. W. 364; Grignon v. Astor, 2 How. 319, 11 L. Ed. 283; Mohr v. Manierre, 101 U. S. 417, 25 L. Ed. 1052; Thaw v. Falls, 136 U. S. 548, 10 Sup. Ct. 1037, 34 L. Ed. 531.

81 Rev. Laws 1910, § 6559.

32 See authorities cited under preceding section.

the minor, and is not adverse so far as the next of kin are concerned. Even though adverse as to the next of kin, they having no property interest in the estate of the minor, a failure to give notice to them should not be held to affect the jurisdiction of the court. The proceedings being instituted and prosecuted by the minor, neither he, his guardian, nor his successors in interest should be permitted to deny the jurisdiction of the court because of defects in proceedings which are essentially his own. A careful examination of the cases and of the reasons urged for each of the views inevitably leads to the conclusion that the decisions holding the doctrine that proceedings to sell the real estate of a minor, by his guardian, are not adversary proceedings, are better founded in reason and supported by authority than those taking the opposite position. If any person not notified of the proceeding should be the owner of an interest in such real estate, either in possession or in reversion at the time of the making of such order, the same would be ineffectual as against him.*

§ 188. Statutory provisions relating to sale of real estate of decedent to control where not otherwise provided.— The Oklahoma statutes provide a definite and independent procedure for the sale of the real estate of minors, up to and including the making of the order of sale. Thereafter the proceedings are to be controlled by those provisions of the statutes relating to the sale of the real estate of deceased persons by the county courts in the exercise of their probate jurisdiction. The language of the statute is as follows: "All the proceedings under petition of guardians for sales of property of their wards, giving notice, and the hearing of such petition, granting and refusing an order of sale, directing the sale to be made at public or private sale, reselling the same property, return of sale and application for confirmation thereof, notice and hearing of such application, making orders rejecting or confirming sales and reports

See footnote 30 on preceding page.