156 Ga. 640 | Ga. | 1923
(After stating the foregoing facts.)
1. There was evidence before the jury which would have authorized them to find that Henry Mack Price was the son of the plaintiff’s intestate; that, although he was the son of a slave and although his birth occurred before March 9, 1866, hé was born within what was recognized as a state of wedlock; that in consequence he was the legitimate son of his father, and that he was sole heir at law of his father, to whom, on the death of the father, these lands descended. The ■ evidence discloses that the father and this son lived on these lands until the father’s death, and that the son continued to live thereon after his father’s death. Both parties claim title under Jack Price, and the only question for determination is who has the better title.” The administrator may recover possession of lands of his intestate from the heirs at law or purchasers from them; but in order to recover he must show upon the trial that either the property sued for has been in his possession and without his consent is held by the defendant, or that it is necessary for him to have possession for the purpose of paying the debts of his intestate, or making a proper distribution among the heirs'at law. An order for sale or distribution granted by the ordinary, after notice to the defendant, is conclusive evidence of either fact. Civil Code (1910), § 3934. If Henry Mack Price was the son and heir at law of the intestate, the title of the latter vested in him at the death of his ancestor; and the administrator could not recover by simply showing that the title to the land was in the intestate when he died. Holl v. Anderson, 98 Ga. 220 (25 S. E. 496); Green v. Underwood, 108 Ga. 354 (33 S. E. 1009). But the defendant admitted that an order had been passed by the proper court of ordinary, authorizing the administrator to sell these lands. This order was prima facie evidence of the fact that a sale of these lands at the time the order was
2. While the original action was one by the administrator to recover these lands as the property of his intestate, by an amendment he alleged that the intervenors claimed to be the owners of the premises in dispute, and that he desired that the respective rights of the parties thereto be determined by the court for his protection as administrator of the estate of his intestate, and that he might be legally discharged and relieved as such administrator. He prayed that the intervenors be permitted to interplead and set up any right they might have to said property, in order that the court might pass upon the respective claims to said property, and mold its judgment in accordance with the facts and .legal rights of the respective claimants. This amendment changed the character of the original suit, and converted it into an action to settle the title of the contending claimants. The intervenors introduced no evidence tending to establish the facts set up in their intervention. The court directed a verdict in favor of the plaintiffs. Upon the rendition thereof, a judgment was entered that the intervenors recover from the defendant the premises in dispute.
Judgment reversed.
