33 Ga. 163 | Ga. | 1862
Lumpkin, J., delivering the opinion.
Was the deed from Levin Irving to Burwell Bussell absolutely void ? We have repeatedly held, and it is the settled law of this Court, that an administrator may purchase at his own sale, and that his title was not void but voidable. The heirs might disaffirm it in a reasonable time. Is this case different from that ? In fact is it not, if anything, stronger? A sale by an administrator to himself may lead to more mischief than a sale to a co-administrator. But in either case, the heirs having the right to repudiate; if they fail to do so in a reasonable time, the sale is good.
Has there been a repudiation in this case ? The sale was made in 1825 after leave being obtained from the Court of Ordinary in the usual way. Elizabeth Oneal, the only heir-at-law, sold to Mr. Newton in 1849, twenty-four years thereafter. The proceeds of the sale of the land was immediately and specifically returned to the Court, and Mrs. Oneal received her distributive share of the estate, including the price of the land through her husband. The administrators in 1826, under the usual citation, were discharged from their trust in 1826, and we hear no complaint from Mrs! Oneal until 1849, when having been divorced for many years from her husband she undertakes to sell the land to Mr. Newton. She had nothing to convey, and she is estopped, not only by the long acquiescence, amounting to a quarter of a century,
In 1850 Mr. Solomon Beekom took a lease on the land from Mr. Newton, to continue upon the terms therein specified until terminated by Mr. Newton. In the spring of 1851 he became dissatisfied with the lease, and a correspondence ensued between him and Mr. Newton, the latter urging him to hold on to the lease, and promising him if he did, he should have the refusal of the land when sold. Mr. Newton wrote to an attorney, Mr. Stafford, to persuade Mr. Beekom to take possession of the land, and that if he would not, to lease the land to. some one else. It does not appear that it was leased to any body else, neither does it appear when Beekom went into possession. He was found living on the land in 1853 when the writ was served. The fair presumption is, that he went into possession under the lease from Néwton, as he did not acquire title from the heirs of Burwell Russell until 1854, pending the action.
Can he repudiate the title of his landlord, good or bad, until he surrenders up the possession? We think not. And upon this view of the case we are constrained to reverse the judgment, although the case, upon its merits, is clearly with the defendant. »
Let the judgment be reversed.
