116 Ga. 901 | Ga. | 1903
In the year 1872 John B. Ogletree, of the county of Monroe, died intestate. David B. Ogletree was appointed his administrator. He obtained an order from the court of ordinary, in 1873, to sell the property of his intestate, both real and personal. At the sale C. O'. Goodwynne became the purchaser of certain land. Apparently this land was sold upon credit, as Goodwynne gave his note for the purchase-money. This note was not paid at maturity, and the administrator brought a suit thereon in the superior court of Monroe county. Goodwynne filed a petition in equity to enjoin the action against him by the administrator. He alleged that he had married a daughter of John B. Ogletree, and that she was one of the distributees of his estate; that the administrator was on this account indebted to her in a sum much larger than the amount of the note sued ou ; and that for that reason the administrator should not be allowed to recover against petitioner
1. The first exception made is as to the admissibility of the deed made by Sharp, the administrator de bonis non, to Goodwynne. The plaintiffs in error contended that Sharp had no power or authority, as administrator de bonis non, to execute this deed, and that it was therefore void and gave no title to Goodwynne, under whom Bellerby claims. The theory of this position is that when David B. Ogletree, the first administrator, sold the land, it was thereby fully administered, and when he took a note for the purchase-money such note was due to him personally and not as administrator; that the land having been administered by the first administrator, and the administrator de bonis non having power only to administer the unadministered assets, the administrator de bonis non had no power to execute a deed to this land. To sustain this contention the cases of Thomas v. Hardwick, 1 Ga. 80, and Oglesby v. Gilmore, 5 Ga. 56, were relied upon. These cases were decided upon questions arising before the passage of the act of 1845 and the adoption of the code, and were based upon what the court then thought was the common law. Since these decisions the code has made quite an innovation with regard to the rights and powers of administrators de bonis non. Under the common law, if an admin
Sharp, the administrator -de bonis non, having administered the assets of the estate arising from the sale of the land, had power to make the deed without any order from the court of ordinary or any other, court, his predecessor having before his death obtained the requisite order authorizing the sale. The administrator de bonis non stood, as to this matter, in the shoes of his predecessor and could do whatever he could have done to complete the administration of the assets of the estate. .See 11 Am. & Eng. Ene. L. (2d ed.) 1155, and the views of Caton, C. J., in Baker v. Bradsby, 23 Ill. 632, and of Safford, J., in Gridley v. Phillips, 5 Kans. 349.
2. Another exception was based on the contention that this deed had never been delivered by Sharp to Goodwynne, the granted. Various affidavits were introduced in evidence upon this question, those on the one side tending to show that Goodwynne’s agent had the deed recorded in order to perfect the chain of title into Goodwynne when he wished to borrow money on the faith of this land; and those on the other that the deed had never been accepted by Goodwynne. Goodwynne himself testified positively that he did not know of the existence of the deed until after the commencement of the suit by Bellerby against him. To our minds, however, the record in this case shows conclusively that Goodwynne employed certain brokers to obtain the loan for him, and gave them authority to examine the title to the land at his expense and execute all necessary papers; that they had an abstract of title made,
3. It was contended by counsel for the plaintiffs in error that Bellerby was not a bona fide purchaser without notice, because the pleadings in the suit filed by Goodwynne against Ogletree, the first administrator, .and the verdict and judgment therein, were constructive notice to the world that Goodwynne’s children had an interest in the land. As before remarked, the judgment rendered in that case was merely a general judgment for a named sum of money, against Goodwynne and in favor of the administrator de bonis non, and had been satisfied long prior to the date of the loan and the deed to secure it. One who had looked at the judgment would have received no notice or intimation that the children had any right or interest in the land. It was merely a general judgment against Goodwynne himself, and could be notice of no claim of his children. The case had been ended and the judgment satisfied years
5. It was further contended that Bellerby had notice of the equity of the children of Goodwynne, because the children resided on tlie land in dispute from the time of their birth up to the time of their majority. This, we think, was not sufficient t6 put the purchaser upon notice as to any equity they might have had in the land. The father held the legal title. He was in possession and. control of the property. The fact that his children resided with him and that he had informed them that they had an interest in the land was -not sufficient to affect Bellerby with notice or to put him upon inquiry. Bellerby knew that the father had the legal title, and that he was in possession and control of the premises. In the absence ’of any notice of the children’s rights, he could deal with the father alone without making any inquiry as to the rights of any one- else in the land. But it was further said that one of the children, after arriving at age and having resided for some time upon other lands of the father, had, in the latter part of December, 1890, a few days before the deed was made by Goodwynne to Bellerby, returned to the land and claimed his right as tenant in common, and his father had assigned him a farm upon the land.’ This is relied upon as notice to Bellerby. The affidavit of this son shows that he returned to the place late in December, 1890, and began to cultivate the land a few days after Christmas, but it does not appear whether he returned to the house and home of his father and resided there or whether he lived in a separate dwelling. It does not appear that there was time for Bellerby to have had any notice of his having moved back upon the land, it not even appearing that he began to cultivate the land prior to the date of the loan. Nearly all of the life of this son had been spent upon this place, and his return and cultivation of the land after Christmas, 1890, was perfectly consistent with his previous residence there, and was not such a change of residence or control as to show a claim adverse to the father. The father had the legal title, and the son had once lived on the place with the father, and in his moving back there was nothing to put the public on notice that he went in any capacity other than as a member of his father’s
6, 7, 8. The remaining headnotes announce no new principles, and are sufficiently full to show their application to the case.
Judgment affirmed.