47 Ga. App. 309 | Ga. Ct. App. | 1933
Mrs. Margaret Kimbro died leaving a will by which her property was equally divided among her five children. One of the children, Mrs. Carder, was named as executrix. The estate consisted of a described house and lot in Atlanta. The plaintiff in this case held a judgment against one of the heirs and had a garnishment issued and served on the executrix, requiring her to answer the amount due that heir. She answered not indebted, and this anfewer was traversed. By agreement of counsel the issue was submitted to the trial judge sitting without a jury. It was shown that the executrix, under an order of the court of ordinary, put up and sold at public outcry the house and lot belonging to- the estate and sold the same for $3000 to A. S. Kimbro as the highest bidder for cash. The property was sold subject to a loan of $2000. A deed was made in accordance with the sale and possession was
In Carder v. Arundel Mortgage Co., 177 Ga. 74 (169 S. E. 302), the Supreme Court held, in answer to a certified question from this court, which arose out of the case here considered, that "“Where the trial of a case commenced during the September term, 1931, of the city court of Atlanta (which is not required to have vacation between its terms, under the Civil Code, § 4877), before the trial judge sitting, by consent of the parties, without the intervention of a jury, at which term the evidence was concluded and arguments thereon heard, and the court, without a previous order authorizing the same and without consent of the parties, withheld rendition of the judgment therein until the immediately succeeding November term, such judgment was not void for lack of authority in the trial judge to render it after adjournment of the September term.” Therefore, in view of the above answer the judgment rendered by the court below at the next succeeding term after the term at which the case was heard was not void.
“Recitals in a deed of the receipt of the purchase-money does not estop the maker from denying the fact and proving the contrary.” Civil Code, § 4188. A grantor in a deed may deny the receipt of the purchase-money recited in the deed. However, under the Civil Code, § 5736, “Presumptions of law are sometimes conclusive, and an averment to the contrary will not be allowed. These are termed estoppels, and are not generally allowed. Among these are . . recitals in deeds, except payment of purchase-money, as'against the grantor acting in his own right, and sui juris, and'his privies in estate, blood, ,aud in law.” In the case of Gammage v. Perry, 29 Ga. App. 427 (116 S. E. 126), the 8th headnote is as follows: “While the consideration of a deed may
In the instant case, the garnishee recited in her deed that the land was exposed for sale at public outcry and that the purchaser was the highest bidder for cash and it was sold to him and a deed was made and possession delivered. If the defendant, the executrix of the estate, failed to collect the money under the terms of such sale, she is nevertheless responsible to heirs and creditors of the estate for an accounting of the proceeds. Especially is this true where it appears that the purchaser at the sale has since that time deeded a half interest in said land to the executrix. The court
Headnote 3 needs no further discussion.
Judgment affirmed.