104 Ga. 482 | Ga. | 1898
Lead Opinion
The sheriff of Floyd county, under a mortgage execution in favor of P. H. Hardin, against J. S. Howell as administrator, and Catherine H. Howell as administratrix, of the estate of W. C. Howell, sold certain land to W. H. Coker & Co., at the price of $600.00, which sum exceeded the amount due upon the execution. The administrator and administratrix upon the estate of A¥. C. Howell brought an action against Coker & Co., to recover a balance alleged to be due by the latter upon the purchase of this land. By an amendment to the plaintiffs’ petition, the name of the sheriff was inserted as suing for their use. The defendants, without raising any question as to the right of the original plaintiffs to bring the action, or objecting to the introduction of the sheriff as the party plaintiff, set up as a defense that the balance due upon the price of the land had been settled with J. S. Howell as administrator, he having received from the defendants $90.00 in cash, and they, at his request, having entered a credit of $110.24 upon notes due by J. S. Howell individually and by his brother, W. S. Howell, to the defendants. The answer further alleged that the two Howells last mentioned were heirs of W. C. Howell deceased, each being entitled to one fifth of his estate; and that the settlement referred to was acquiesced in by the sheriff, who, in pursuance thereof, conveyed the land to the defendants. By
We will remark in the first place, that the representatives of the estate of W. C. Howell could not, as against a proper defense, have maintained this action as-originally brought. There was no privity between them and the purchasers at the sheriff’s sale. Though this administrator and administratrix were entitled to the balance of the purchase-money of the land, in excess of the amount required to satisfy the liens thereon, it was the duty of the sheriff to collect and pay the money over to them. As he was, without objection, made the party plaintiff in the present case, it should be treated as if he had brought it in the first instance. That the administrator and administratrix were the original plaintiffs is of no consequence. They could not, as above stated, have maintained the action in their own right, and therefore they figure in the case as mere usees. That they are such can not give to the sheriff, the real plain
The trial judge erred in directing a verdict for the plaintiff. Conceding the truth of the defendants’ allegations, the verdict ought to have been in their favor.
Judgment reversed.
Dissenting Opinion
dissenting. One who buys land sold under execution by the sheriff is bound to pay for the same. The fund arising from such sale can not be distributed by the sheriff except at his own risk. That officer is bound to bring it into court for distribution. Nor can the purchaser retain in his hands a part of the purchase-money, under an arrangement made with one of the administrators of the defendant in execution to allow such part of the purchase-money to be applied by the purchaser on a debt due to him by one of the administrators individually, without showing that there were no creditors of the intestate who were entitled to prior payment. Funds in the hands of an administrator are not his individual funds; and this is true even if the administrator is an heir at law, and would be entitled to a part of the fund remaining over after payment of the execution under which the land was sold. In this case the plaintiffs in error bought a tract of land for six hundred dollars at sheriff’s sale, under an execution against