| Ga. | Jun 30, 1903
Fussell brought proceedings to correct a mistake in a bond for titles given by him to McLeod, and by amendment asked for a cancellation of the contract and a return of the property. The defendants were Dennard, administrator of McLeod, and Paxon, Pate & Brothers, and the Wadley Lumber Company, holding under Dennard as administrator by virtue of an order to sell at private sale, granted to him by the ordinary of Irwin county. The petition for leave to sell was filed October 6,1899, and recited that the estate of McLeod owned timber leases on a number of tracts of land, including that in controversy, besides sawmills, engines, and three miles of iron rails; “that said personal property” belonged with the timber and should be sold with it to prevent loss, and prayed for leave to sell at public outcry or private sale, or as he might deem most advantageous to the estate “ all the above-named property.” On the same day the ordinary passed an order granting him leave to sell as prayed for. From the briefs of counsel we learn that the nonsuit was granted on the theory that this, being an order of a court of competent jurisdiction, imported verity, could not be collaterally attacked, .and that the purchasers thereunder acquired a good title to the timber, even though no citation had been published and the sale was private.
All sales by administrators are required to be at public outcry, except annual crops sent off to market, and vacant lands. Civil Code, §3446. Section 3448 permits “ wild uncultivated lands lying in counties other than that of the administration” to be disposed of at private sale, but the order authorizing such sale must be after ^notice. When, therefore, the record was not only silent as to notice, but affirmatively showed that the order was granted the day the petition was presented, its .invalidity was apparent. There is every presumption in favor of the regularity and validity of judgments by the court of ordinary; but where the record discloses that no notice was given, and that the statute requiring citation and advertisement has not been complied with, the prima facie
The administrator’s answer set up that he had received letters of dismissal from the court of ordinary'of Irwin county, but there was no evidence of that fact, and the defendant is not entitled to any benefit therefrom in this court, since the judge in this equitable proceeding passed an order equivalent to a nonsuit in a common-law case, and dismissed the action at the conclusion of the plaintiff’s evidence.
The names of the parties as set out in the bill of exceptions vary slightly from those as stated in the original petition, but the-changes were immaterial. It is evident that the same persons were referred to in the petition, the order of nonsuit, and the bill of exceptions; and the motion to dismiss is overruled.
Judgment reversed.