PARTIALLY DISSENTING OPINION ON SUGGESTION OF ERROR. No decree was entered by either Chancellor Gillespie or his successor, Chancellor Neville, approving and confirming the sale of royalty. The decree of Chancellor Gillespie dated February 21, 1944, authorizing the sale, required the guardian to report "her acts and proceedings for confirmation." Protests by the minors and their next of kin were filed against such confirmation. They also filed a bond, with approved sureties, obligating themselves to "pay all costs of the resale and shall start the bidding on the resale at twenty percent (20%) advance on the former sale . . ." September 8, 1944, a final decree was entered declining to approve the sale. It is true that in the opinion of the chancellor he found fraud had been practiced on Chancellor Gillespie in obtaining the authority for sale February 21st, but he also necessarily found that it was not to the best interest of the minors to make such sale, — at least, he did not find it was to their best interest to do so. Aside from whether this Court has the power to reverse a chancellor on a finding that it is not to the best interest of a minor to sell his property, and thereby require the chancellor to decree such sale against his judgment, or decree the sale ourselves, there is nothing in this record showing it is to the best interest of these minors to make such sale. Indeed, the opinion of the chancellor indicates it would be greatly against their interest to so require. Section 1389, Code 1942, provides that before any deed to land sold at private sale shall become effective, the sale shall be reported to the chancellor "and an order approving *Page 402 such sale placed upon the minutes of the court," and in this case the chancellor had by his decree expressly required a report and confirmation of the sale, which confirmation was never obtained.
In addition, Section 1385, Code 1942, provides that the party objecting to a sale "may prevent the confirmation thereof . . ." by making bond conditioned to pay the costs of resale "and that the property shall bring thereat an advance of not less than twenty per centum . . ." As above stated, such bond was made in this case.
Smith, C.J., concurs in this opinion.