Hall v. Ewing

149 Ga. 693 | Ga. | 1920

George, J.

The evidence did not require, even if it authorized, the juryto find that the defendant had acquired a prescriptive title to the land. Did the defendant show legal title to the land? It is contended that the court of ordinary was without jurisdiction, to order a sale of the devised real estate, in the absence of allegation and proof that the personalty of the estate was insufficient to pay the debts. The court of ordinary in the administration of estates, testate and intestate, is a court of general jurisdiction; and unless negatived by the record, every necessary jurisdictional fact is presumed in favor of the validity of its judgments. If it be true, therefore, as contended by the plaintiff, that the court was without jurisdiction to order a sale of the devised land, in the absence of a showing that the personalty belonging to the estate was insufficient to pay the debts, the order granting leave to sell the land, by reason of the presumption, will sustain itself against collateral attack by parties or privies. Wash v. Dickson, 147 Ga. 540 (94 S. E. 1009), and cases there cited. The court of ordinary may order the sale of devised real estate for the purpose of paying the debts, provided it be necessary to sell the same for such purpose. Harris v. Cole, 114 Ga. 295 (40 S. E. 271). The obvious reason is that the right of the creditor is superior to the right of the devisee to take under the will and to the right of the testator to dispose of his property by the will. In the present case the ordinary granted leave to sell the devised lands for the purpose of paying debts and for distribution. Under the will of the testator the executrix was directed to pay the debts without delay, and to make an equal division between the devisees. It is therefore apparent that under the terms of the will the duty of selling for distribution, 'if the lands could not be divided in kind, devolved upon the executrix. Civil Code, §§ 3681, 3892. Whether the court of ordinary has jurisdiction to order the sale of devised realty for the purpose of distribution, even where the realty can not be divided in kind, where no duty of selling for distribution is placed by the will upon the executrix, is a question not necessarily involved in this case. See Beaty v. Stapleton, 110 Ga. 580 (35 S. E. 770). On the question of collateral attack, see Copelan v. Kimbrough, ante, 683.

2. It is further contended that the sale of the devised lands was not authorized by the judgment of the ordinary, conceding its validity, and that the deed made to the purchaser at such s.ale was therefore void and inadmissible in evidence. It is also contended that the proceedings filed to correct the judgment under which the land was sold, and the order of the ordinary in 1897 correcting the judgment as prayed, were ineffectual for that purpose, because the guardian of the person and property of the minor devisees appointed by the ordinary of Pierce county was not made a party to the proceeding. The minors themselves were served personally, a guardian ad litem was appointed for them, and service duly accepted by such guardian ad litem. It does not appear that the guardian of the person and property of the minor devisees did not have actual notice of the proceeding to correct the judgment, and, if a party, that he could have offered any legal objection. Indeed, no objection was urged at the trial why the judgment should not have been corrected as prayed. The application of the executrix correctly described the land which she desired to sell as lot No. 303.”' The order granting leave to sell specifically recites that it was necessary that “said land” be sold. In terms the order described the land as an unimproved lot; and it appears without dispute that the testator never owned lot 343 in the second district of Appling county, but that he did own lot 303 in said district, and that lot 303 was the only unimproved lot owned by him. We think it obvious that the insertion of the figures “343” in the order granting leave to sell was the result of inadvertence or misadventure. So far as the record discloses, LaFayette Johnson paid full value for the land. With the money paid by him to the executrix the debts of the estate were presumably discharged. The sale was made in 1885; the order granting leave to sell was corrected in 1897, and the youngest of the devisees was of age in 1900. In such circumstances the sale by the executrix conveyed title to the land in dispute. This being true, the verdict for the defendant was demanded, and none of the rulings on the admissibility of evidence require a reversal of the judgment denying a new trial.

Judgment affirmed.

All the Justices concur.