136 Ga. 665 | Ga. | 1911
The plaintiff in error filed its petition to have the defendants in error enjoined from cutting and removing timber from two described tracts of land, and from using the timber for turpentine purposes, or otherwise interfering with it. The plaintiff claimed title 'under deeds from administrators whose in-testates had grants, respectively, to the two tracts of land from the State. Upon the conclusion of the evidence the court directed a verdict in favor of the defendants, and the plaintiff excepted. The administrators who made the deeds each obtained an order from the ordinary appointing him, authorizing him to sell the tract of land of his -intestate as wild land at public or private sale. The administrators, respectively, made private sales of the two tracts of land, and deeded the same to the plaintiff. The bill of exceptions recites that upon the conclusion of the evidence the court “directed a verdict for the defendants, in language following, namely: eIt appearing to the court that at the time the deeds were made to these lots of land Nos. five and six to the plaintiff in this suit, that the defendants were in possession of lots in controversy, ’and that thereupon these deeds being made by the administratrix of the estates of Melton and Eogers, the plaintiff can not recover in this suit, for the reason that, as stated in Code [1895] section 2457 [Code of 1910, § 4033], an administrator can not sell property held adversely to the estate by a third person; he must first recover possession. This having not been done by the administratrix aforesaid, a verdict is directed for the defendants. This verdict is directed solely and only upon this ground.’ ” The plaintiff excepted to the direction of a verdict, on the ground, among others, that the section of the code referred to, providing that' an administrator can not sell lands held adversely to the estate, “is not applicable to a sale of wild lands.” The plaintiff in error contends that the statute intended to give an administrator the right to sell wild land at private sale, though held at the time adversely to the estate. Under the common law, and under the statute of 32 Henry VIII,
We do not think the evidence such as warranted the court in directing a verdict for the defendants on the ground on which he directed it. Under the evidence, the question as to whether the lands were “wild uncultivated lands” when the private sales and deeds by the administrators were made to the plaintiff was one for the jury. There were in evidence grants from the State to the two lots; one grant was to Zaekariah Melton and the other to Davis Bogers, each conveying one of the lots of land. The deed of the administrator of Bogers to the plaintiff was dated July 6, 1906, and was made under an order of the ordinary granted at the July term, 1906, of 'the court of ordinary. The deed of the administrator of Melton to the plaintiff, convejdng the other lot of land, was dated September 28, 190C, under an order of the ordinary granted at the September term, 1906, of the court of ordinary. There was in evidence a deed to the two lots of land from Sharpe to Lydia Stone, dated April 10, 1905, and a deed from the latter to the defendants, conve}dng the -two' lots of land, dated May 19, 1905. The only oral testimony upon the trial of the ease was that of Gordon Stone, whose testimony in full was as follows: “I am acquainted wi+h lots Nos. 5 and 6 in' the 2nd distinct of Charlton
Judgment reversed.