It did not authorize Garrett to enter into a contract of sale binding the owners. Smith v. American Inv. Co., 139 Okla. 53, 281 P. 228, 229; Levy v. Yarbrough, 41 Okla. 16, 136 P. 1120, 1121; Whisnand v. Wingfield, 186 Okla. 148, 96 P.2d 318, 322; Gault Lumber Co. v. Pyles, 19 Okla. 445, 92 P. 175, 176. The listing contract was not an offer to sell, and Garrett, by writing purporting to accept the terms of sale set forth therein, could not create a binding contract to sell.
12 O. S. 1941 ยง 1031, sub. 8, ยง 700. The guardian's deed to Emery, based on the contract, conveying the minor's land, is conceded by the majority to be void, as well it may be. Gault Lumber Co. v. Pyles, 19 Okla. 445, 92 P. 175; Drennan v. Harris, 67 Okla. 313, 161 P. 781, 170 P. 500; Smith v. Rockett, 79 Okla. 244, 192 P. 691; William Cameron Co. v. Yarby, 71 Okla. 79, 175 P. 206; Anno. 108 A.L.R. 936; Perkins v. Middleton, 66 Okla. 1, 166 P. 1104; Cochran v. Davis, 154 Okla. 103, 6 P.2d 685. Likewise, the lien adjudged against the minor's land was void.
Collins v. Lackey, 31 Okla. 776, 123 P. 1118. The case of Gault Lumber Co. v. Pyles, 19 Okla. 445, 92 P. 175, is very similar to the case at bar, and there the court said: "Nor do we think the defendant showed such equity as would entitle it to a specific performance of the contract. It never went into possession of the lot or expended any money or labor upon it in the way of improvements until after the Pyles deed had been refused, the defect in the title discovered, and the refusal of Pyles to carry out the contract was made known to it.
In instruction No. 4, the court instructed the jury that a contract made by a guardian for the sale of his ward's land in advance of probate proceedings authorizing the same and independent thereof is void. In this, we think there was no error, as such was the holding of this court in the case of Gault Lumber Co. v. Pyles, 19 Okla. 445, 92 P. 175, and in Wm. Cameron Co. v. Yarby, 71 Oklahoma, 175 P. 206, where the court said: "A guardian cannot make a contract which will bind the person or estate of his ward, unless authorized by a court of competent jurisdiction to enter into such agreement."
In our judgment the allegations of the petition show no authority in the agent further than to procure a purchaser acceptable to the owners. This question was before the territorial Supreme Court in case of Gault Lumber Co. v. Pyles et al., 19 Okla. 445, 92 P. 175, and in the body of the opinion, written for the court by Chief Justice Burford, it is said: "Nor do we think there was shown such a written authority of the agent to sell as will take the case out of the statute of frauds.