162 Ga. 403 | Ga. | 1926
(After stating the foregoing facts.) We are of the opinion that the court did not err in overruling the demurrers. While there is a seeming inconsistency between the prayer that a decree be rendered placing the title to the property in question in petitioner, and another prayer for a judgment for the money which had been paid over, this in effect is a prayer for alternative relief; that is, it is a prayer seeking the recovery of the money paid in the event the plaintiff can not have title decreed in himself. It is competent for a court of equity to render relief where prayers for alternative relief are thus made and properly made under the facts alleged. Manifestly, the plaintiff is seeking to have the sale confirmed, and this the defendants, Dukes and the administratrix, also desire; that is, presumptively it is their desire, for we are passing on a demurrer, inasmuch as they seek the dismissal of the suit. But if the heir was actually in possession of the premises, claiming the right to the possession thereof and the right to exclude the purchaser from the premises, the sale was void, if it was held adversely to the estate. While Miner was one of the heirs, under the allegations in the petition his possession is to be treated as adverse to- the estate; and an administrator can not lawfully sell property of the estate that is held by a third person adversely to such estate. Before a lawful sale can be made the administrator must first recover possession. Civil Code, § 4033.
There was no misjoinder of parties. If this petitioner did get title as against the party actually in possession and contesting the purchaser’s right and title, he had a right to have it settled in this