Groover v. King

46 Ga. 101 | Ga. | 1872

Warner, Chief Justice.

This was a bill filed by the complainants against the defendant to set aside a sale of certain described lands purchased by the defendant at an administrator’s sale on the 3d day of December, 1861. On the trial of the case the jury found a verdict for the defendant. A motion was made for a new trial on the several grounds specified in the record. The Court overruled the motion, and the complainants excepted. Whether the letters of administration of Kemp, offered in evidence, which were issued to him by the Ordinary upon the resignation of Rushin, could be collaterally attacked upon the ground set forth in the fourth assignment of error, this Court is not prepared to deliver an unanimous judgment, and we, therefore, express no opinion in relation to that question. In our judgment, the Court erred in admitting in evidence the paper signed by the Ordinary purporting to grant leave to sell the land, brought into Court by the defendant, which had never been recorded, or entered on the minutes of the Court, and without evidence that such an order for the sale of the land had been granted by the Court of Ordinary at a regular term of the Court. This administrator’s sale, as well as the other proceedings in relation thereto, took place prior to the adoption of the Code,, and must be controlled by the then existing law. The seventh section of the Act of 1852 declares that no order for the sale of real estate shall be granted except at a regular term of the Court of Ordinary. The action and proceedings of a Court of record must be shown by its records; that is the highest and best evidence of its action in relation to the subject-matter confided to its jurisdiction. It is not pretended that the records of the Court of Ordinary of Brooks county have been lost or destroyed, and there is nothing upon the records of that Court whi«h shows that an order for the sale of the land in controversy was ever granted by that Court, which was an indispensable prerequisite to divest the heirs of their title to the land and vest the same in the defendant as a purchaser thereof at the administrator’s sale. The Act of 1852 also declares that forty days’ public notice of the sale of the land should have been given by the administrator after leave had been granted by the Court of Ordinary to sell it. The pretended order for the sale of the land, offered in evidence in this case, is dated 4th of November, 1861, and the sale took place on the first Tuesday in December, 1861, twenty-nine days only after the pretended order of the Court bears date. The deed made by the administrator to the defendant recites that leave to sell the land was granted in November last past, before the making and delivery of the deed to him, on the 3d day of December, 1861, so that the defendant had notice, on the face of his deed, that the requirement of the law, in that particular at least, had not been complied with so as to make it a legal and valid sale.

Although the minor heirs of the intestate may have had a guardian, and that guardian may have receipted to the administrator for their share of the proceeds of the sale of the land without any knowledge of the illegality of the sale, as the evidence in the record shows, they were not estopped from asserting their claim to the land when they obtained a knowledge of such illegal sale, and it was error in the Court to charge the jury that they were estopped. Estoppels are not generally favored by the Courts, and it would be a very harsh rule to establish that the minor heirs in this case were estopped when their guardian had no knowledge of the illegality of the sale of the land. But in electing to set aside the sale they must account for what they have received from the sale of the land: they cannot have the land and retain the proceeds of the sale thereof.

Let the judgment of the Court below be reversed and a new trial ordered.