123 Ga. 336 | Ga. | 1905
This was a common-law action of ejectment, brought to recover a lot of land in Colquitt county. Several demises were laid, as will hereafter more fully appear. The plaintiff and the defendant claimed under a common source of title, viz., the estate of James Davison, of Greene county, who held under a grant from the State, and who died in 1882, leaving a will in which it was provided that the testator’s wild lands (which included the lot now in dispute) “ be sold at such time and place as may be to the best interest of my estate, at the discretion of my executors and the ordinary of this (Greene) county.” The testator’s wife, Ella M. Davison, was made executrix, and W. E. Davant and W. A. Overton executors of the will. In 1884 Davant and Over,ton, by consent of the executrix, resigned as executors, and were duly discharged from their trust by the ordinary of Greene county. In 1894 Robert E. Davisonfiled a petition in the court of ordinary of Greene county, reciting that the duly nominated executors of the estate of James Davison were no longer qualified to act, and that the estate was not fully administered, and praying that he be appointed administrator de bonis non cum testamento annexo of the estate of James Davison. The petition was granted, and letters of administration issued to Robert E. Davison. In 1897, for the purpose of administering the estate of James Davison, and for distribution among the heirs of the estate, the administrator applied for and received from the ordinary- of Greene county permission to
1. It will be seen that the plaintiff put in evidence without objection a chain of title apparently complete, originating in a grant from the State to James Davison. The defendant’s title sprang from the same source, and the question arises, who has the better title ? The parting of the ways came with the quitclaim deed by Davant to' Norman in 1882. The decision of this case turns in large measure upon the construction of this deed; for if it conveyed title, the subsequent deed from the administrator de bonis non was nugatory, and the court was right in directing a verdict for the defendant; while if it did not pass title, the defendant must yield to the superior claim of the plaintiff. The. deed from Davant to Norman was executed by virtue of a provision in' the will of James Davison, that the wild lands of the testator’s estate be sold at such time and place as might be to the interest of the estate, at the discretion of his executors (three in number) and the ordinary of Greene county. The vital question at issue is whether or not Davant, a single executor, had authority to execute a deed which would pass title, his coexecutors having qualified but failing to join with him in the deed. There seems to be no doubt that in ordinary acts of administration of an estate the act of one executor is the act of all, and is binding upon the estate. Hall v. Carter, 8 Ga. 388; Wilkerson v. Wootten, 28 Ga. 568; Willson v. Whitfield, 38 Ga. 270. The sale of the wild lands of the estate of James Davison, however,
2. It is claimed, however, by counsel for the defendant, that the heirs of James Davison and those claiming under them are estopped by long acquiescence in the deed from Davant to Norman. A complete reply to this contention is that there is in the record no evidence whatever of actual notice to the heirs of the deed, while that instrument was not recorded until September 12, 1898, more than sixteen years after its execution, and several months after the record of the deed from Davison, administrator, to Haden. It was not shown that any part of the purchase-price received by Davant from Norman was paid to the heirs, or that they knew at any time that the conveyance had been made. It was not claimed that the defendant or his predecessors in title had acquired any prescriptive title to the land in controversy.
3. It was sought to show by the depositions of Davant that he had authority from the coexecutors to execute the deed to Norman and to manage the affairs of the estate generally. Prom the bill of exceptions it appears that there was no evidence that these depositions were taken upon notice; “that they were not accompanied by any notice to take the same, nor was there any service or evidence of service thereon; that they were not dated; neither was it shown that they were taken in any lawful manner or by any lawful authority, being unaccompanied by any caption or return. The deposition began in the following language: Hosch Lumber Co. vs. J. S. Weeks et al.; in the superior court of Colquitt county; Georgia, Greene county; deposition of W. P. Davant, being duly sworn on cross-examination by the defendant. Then follows the deposition, signed by W. P. Davant;
Judgment reversed.
