of sale, ordering and making conveyances of property sold, accounting and the settlement of accounts, must be had and made as provided and required by the provisions of law concerning the estates of decedents, unless otherwise specifically provided herein.” 33

While the language of the body of the statute is sufficiently broad to require the giving of notice of application for sale in accordance therewith, it is limited in its application to those cases where not otherwise provided for.

An identical statute was construed, by the Supreme Court of California, as applicable only to matters of procedure not provided for in the chapter relating to Guardian and Ward.34 Inasmuch as the chapter on Guardian and Ward contains a provision prescribing the terms of the order for sale of the real estate of a minor, specifying the character and length of notice to be given, the above statute should be considered as having reference to the notice of sale only, and proceedings subsequent thereto, and not to the notice required to be given on application for an order of sale.

§ 189. Order of sale.-If, after a full investigation, it appears necessary, or for the benefit of the ward that his real estate, or some part thereof, should be sold, the court may grant an order specifying therein the cause or reasons why the sale is necessary or beneficial, and may, if the same has been prayed for in the petition, order the sale to be made either at public or private sale.

The statute 35 does not prescribe the method or terms of sale, but it seems quite clear that the same is to be governed by the statute applicable to the sale of the real estate of decedents. The statute prescribing the terms and method of sale of the real estate of a decedent requires that the order of sale must describe the lands to be sold and fix the terms of sale, which may be for cash,

33 Rev. Laws 1910, § 6565.

34 In re Hamilton's Estate, 120 Cal. 421, 52 Pac. 708. 85 Rev. Laws 1910, § 6563.

or one-third cash and the balance on credit, not exceeding two years, payable in installments within that time, with interest as the court may direct.36 The land may be sold in one parcel or in subdivisions as the guardian shall judge most beneficial to the estate, unless the court otherwise specifically directs. Every such sale must be at public auction, unless in the opinion of the court it would benefit the estate to sell the whole or some part of said real estate at private sale, in which event, if it be prayed for in the petition, the order directing the sale of such real estate may direct that the same be sold either at public or private sale as the guardian shall judge to be most beneficial to the estate. There can be no objection to including in the order of sale a definite provision whether the sale shall be public or private. The guardian may be, and frequently is, at a loss as to the method of procedure, in the absence of instructions from the court ordering the sale. Wherever it is within the jurisdiction to prescribe in detail the manner of the execution of an order of sale, it is advisable to do so and relieve the guardian of the responsibility of having to act upon his own judgment in matters involving indirect legal questions. The order should also direct whether the sale should be for cash or on credit, and should contain an accurate description of the property ordered sold. An error in the description of the property may not affect the validity of the sale, but the possibility of future controversy arising from defects of this character has a tendency to deter bidders and affect the stability of titles, and full compliance with all provisions is desirable as a safeguard for the protection of minors.37

The statute expressly requires that the order of sale specify the causes or reasons why the same is necessary

36 Rev. Laws 1910, § 6379.

37 In re Hayden's Estate, 1 Cal. App. 75, 81 Pac. 668; Hill v. Wall, 66 Cal. 130, 4 Pac. 1139; Wilson v. Hastings, 66 Cal. 243, 5 Pac. 217; In re Hamilton's Estate, 120 Cal. 421, 52 Pac. 708; Crosby v. Dowd, 61 Cal. 557.

BLED. IND.(2D ED.)-14

or beneficial.38 This provision serves two purposes. It directs the court's attention especially to the necessity for a legal reason authorizing the sale and demands an adjudication of the existence of a state of facts authorizing a sale under the statute. A guardian is required to execute an additional bond 39 before selling the real estate of a minor, and it is well to include in the order of sale a provision directing the execution of such bond and fixing the amount thereof. If a private sale is directed, it is perhaps desirable that the order should name the appraisers. If not named in the order, they should be promptly appointed by an order duly entered of record.

§ 190. Notice of sale prior to June 17, 1910.-Notice of a sale of the real estate of a minor which is to be made at public auction must be given by posting such notice showing the time and place of the sale, in three of the most public places in the county in which the land is situate and by publishing the same for three weeks successively next preceding the sale in a newspaper printed in the same county; if there be no newspaper printed therein, then the notice must be published in such newspaper as the court may direct. The notice is required to give only the time and place of the sale and under the statute need not give the terms and conditions thereof unless required by order of the court. While the statute does not seem to require it, it is certainly advisable that the notice contain the terms of sale. 40

It will be observed that the provision for publication of the notice of sale differs substantially from the provisions on an application for an order to sell. Upon an application for an order to sell, a personal notice of fourteen days is required or notice must be published at least three succes

38 Rev. Laws 1910, § 6563.

39 Rev. Laws 1910, § 6564; Fuller v. Hager, 47 Or. 242, 83 Pac. 782, 114 Am. St. Rep. 916; Hughes v. Goodale, 26 Mont. 93, 66 Pac. 702, 91 Am. St. Rep. 410.

40 Comp. Laws 1909, § 5318.

sive weeks in newspaper printed in the county, etc. The notice of the time and the place of the sale of the real estate of a minor must be posted in three of the most public places in the county in which the land is situated and published in a newspaper, if there be one printed in the same county in which the land is situated, but if none, then in such papers as the court may direct for three weeks successively next before the sale. The statute contemplates a publication for three successive weeks next before the sale. What is the effect of the publication of a notice for the given time, but not for three weeks successively next before the sale? Or, what is the effect if the notice be published in three successive weekly issues of a newspaper, but the full three weeks have not expired from the date of the first publication, when the day of the sale arrives? A failure to substantially comply with the provisions of the statute would perhaps be held to constitute reversible error on appeal from an order of confirmation, but would the failure to so comply render the sale invalid. to such an extent that it could be assailed in any other manner than by appeal? While the authorities are not entirely uniform, it is believed that error or defect in publication cannot be made the basis of collateral attack. upon a conveyance made by a guardian under order of sale, where the same has been duly reported to and confirmed by the court.*1

§ 191. Notice of sale subsequent to June 17, 1910.-Where a sale of the real estate of a minor is ordered to be made at public auction subsequent to June 17, 1910,12 notice of the time and place of the same must be posted 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 of sale is made, and, in addition thereto, must

41 See authorities cited under section 184, note 26, and section 191, note 43.

42 R. L. 1910, § 6559.

be 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 date of sale must be at least fifteen days from the first publication of the notice. What is said with reference to irregularities in the giving, posting, or publication of notice of sale in the preceding section is applicable to proceedings under this section. Under the peculiar wording of this statute some embarrassment might be occasioned if a sale of real estate should be sought to be made in a county in which no newspaper is published, as notice is required both by posting and publication.43

§ 192. Time and place of sale.-Sales at public auction must be made in the county where the land is situated, but where situated in two or more counties it may be sold in either. The sale must be made between nine o'clock in the morning and the setting of the sun on the same day, and on the day named in the notice unless postponed to a future day."

44

If, at the time appointed for the sale, the guardian deems it for the best interest of the persons concerned therein that the sale be postponed, he may postpone the same from day to day, not exceeding in all three months.45 In case of postponement, notice 46 thereof must be given by public declaration at the time and place appointed for the sale, and if postponement be for more than one day further notice must be given by posting in three or more public places in the county where the land is situated, or by publishing the same, or both, as the time and circumstances will admit.

43 Eaves v. Mullen, 25 Okl. 679, 107 Pac. 433; Mohr v. Tulip, 40 Wis. 66; Scarf v. Aldrich, 97 Cal. 360, 32 Pac. 324, 33 Am. St. Rep. 190; Zilmer v. Gerichten, 111 Cal. 73, 43 Pac. 408; Blackman v. Mulhall, 19 S. D. 534, 104 N. W. 250. See, also, cases cited under

section 184.

44 Rev. Laws 1910, §§ 6381, 6382.

45 Rev. Laws 1910, § 6391.

46 Rev. Laws 1910, § 6392.