1. Where, in a suit by heirs at law to cancel a deed, the petition alleges that there is an administrator, but does not allege the assent of the administrator for the heirs to bring the suit, and does not charge fraud or collusion on the part of the administrator, the petition sets forth no right of action.
2. The allegations in the petition, which seek a cancellation of the deed as being a cloud on the plaintiffs' title to an undivided two-sevenths interest in the land, are not sufficient to constitute a cause of action as a proceeding quia timet under the Code, §§ 37-1407 et seq.
No. 14822. MAY 5, 1944.
John C. Clark died seized and possessed of described land lots in Lumpkin County. He left seven children. One of them, Hood Clark, purchased the interest of three of the other children, thus giving him a four-sevenths interest in the land. Ten children of William Clark, deceased, and four children of George Clark, deceased, neither of whom sold his one-seventh interest to Hood Clark, are the present plaintiffs. John Clark, also deceased, owned a one-seventh interest. It is alleged that his heirs, if any, are unknown; that the plaintiff's uncle, Hood Clark, who owned a four-sevenths interest in the land, is dead, and that his brothers and sisters, and descendants of brothers and sisters, are his heirs at law; and that the plaintiffs, as descendants of deceased brothers, are heirs at law of Hood Clark; that Hood Clark died in November, 1942, having previously, in January, 1942, executed a deed purporting to convey this land to Mae Woody. Mae Woody, her father, W. A. Woody both of Union County, and Ernest Harkins, of Lumpkin County, as administrator of the estate of Hood Clark.
were named as the defendants. The suit was filed in the superior court of Lumpkin County. It was alleged that the deed was obtained by fraud on the part of Mae Woody and her father, W. A. Woody, and that W. A. Woody was the real grantee in the deed, and that, at the time the deed was executed, Hood Clark was without mental capacity to execute a deed. The petitioners further alleged that the deed was a cloud upon their title to a two-sevenths interest in the land. The prayers were for process; that the unknown heirs be permitted to intervene; that the deed be canceled; that the title to said lands be decreed to be in the heirs at law of John C. Clark and Hood Clark as their interests might appear; that Ernest Harkins as administrator of the estate of Hood Clark be restrained and permanently enjoined from surrendering possession of said real estate, and from ratifying or acquiescing in said sale and conveyance; and for other relief. Demurrers, both general and special, were filed by each defendant. The court, in sustaining the demurrers, dismissed the petition as to W. A. Woody and Ernest Harkins, administrator; thus leaving Mae Woody, a resident of Union County, as the sole defendant. It is admitted in the brief of the plaintiffs in error that the court did not err in dismissing W. A. Woody as a party. Since the suit was dismissed as to Ernest Harkins, the only defendant residing in Lumpkin County, the court was without jurisdiction of Mae Woody, and accordingly dismissed the action as to her. The question for determination is whether the court erred in sustaining the general demurrer of Ernest Harkins, as administrator.
1. The court did not err in sustaining the general demurrer of Ernest Harkins, as administrator. This suit was instituted by certain heirs at law. The petition shows on its face that there is an administrator of this estate. "Under the provisions of the Code of this State, before heirs at law of a deceased intestate can recover land which had belonged to the estate of such intestate, they must allege and prove that there was no administration on the estate, or that the administrator, if there was one, assented to their bringing suit."
Greenfield v.
McIntyre,
112 Ga. 691
(
38 S.E. 44);
Doris v.
Story,
122 Ga. 611,
613 (
50 S.E. 348);
Wilson
v.
Wood,
127 Ga. 316 (
56 S.E. 457);
Gornto v.
Wilson,
141 Ga. 597 (
81 S.E. 860);
Strickland v.
Fender,
142 Ga. 132
(
82 S.E. 561). Since it appears that there was an administrator, but it does not appear that the administrator assented to the bringing of the suit by the plaintiff heirs, they were without legal authority to appear as plaintiffs. Nor does the petition take the case out of the above rule by making any allegation of fraud or collusion on the part of the administrator.
Anderson v.
Goodwin,
125 Ga. 663 (5) (
54 S.E. 679);
Kinard v.
George,
142 Ga. 111 (2) (
82 S.E. 560). Where, in a suit by the heirs at law to cancel a deed, the petition shows that there is an administrator, but does not allege his assent to the bringing of the suit, and does not charge fraud or collusion on the part of the administrator, the petition sets forth no right of action.
2. Neither do the allegations in the petition that this deed is a cloud upon the title of the plaintiffs' two-sevenths interest in the land make the petition good as a proceeding quia timet, under the Code, §§ 37-1407 et seq. In this regard the petition alleges that "to permit the said deed to remain of record would be a fraud upon your petitioners, and the said deed is a cloud upon petitioners' title to said lands;" and also, "petitioners show that the said deed is a cloud upon their title." The petition states that Hood Clark was "the owner of an undivided four-sevenths interest in the said described land." A copy of the deed is not attached to the petition, but it is alleged that the defendant, "W. A. Woody, had placed upon the deed records of Lumpkin County, . . a deed . . purporting to have been signed by the said Hood Clark and purporting to convey" all of the above described lands to Mae Woody. Construed most strongly against the pleader, the petition does not allege that the deed purported to convey a complete title to a full interest in the tract. If Hood Clark owned a four-sevenths interest in the land, and conveyed his "interest in the land," such a deed could, under no circumstances, be a cloud upon the title to the two-sevenths interest of the petitioners. Latham v. Inman,88 Ga. 505 (15 S.E. 8).
Judgment affirmed. All the Justices concur.