153 Ga. 682 | Ga. | 1922
(After stating the foregoing facts.)
It is well-settled law in this State that an administrator can not . purchase at his own sale, either directly or indirectly, and that such sale is voidable at the instance of heirs at law of the intestate, who do not ratify the sale, and who move to set it aside within a-reasonable time. See DeVaughn v. Griffith, 149 Ga. 697 (101 S. E. 794). It is conceded on the argument here by counsel for plaintiffs in error that if it be determined that subsequent purchasers are such bona fide and for value without notice, then the trial judge properly dismissed the petition on demurrer. But it, is contended that none of the subsequent purchasers from Mrs. Cook were bona fide purchasers without notice of the fact ■that- the ■ administratrix purchased the lands at her own sale; and it is ■ argued that a purchaser is chargeable with notice of recitals in- a deed constituting a muniment of title, as well as every-fact appearing upon record with reference to his title; citing Devlin, on Deeds, 1889, § 1000.- In the case of Rosser v. Cheney, 61 Ga. 469,
In the case of Cox v. Barber, 68 Ga. 836, two executors sold realty of their testator; a third party bought; on the same day he conveyed the land to one of the executors individually; some two years thereafter the latter sold to a purchaser for value; the deeds on their face all purported to be for a fair and valuable consideration. It was held in that case: “ That in the absence of all actual notice, these facts appearing from the recorded deeds were not sufficient to put the purchaser on notice that the sale was by an executor to himself, so as to prevent his being entitled to protection as a bona fide purchaser.” And see Moore v. Carey, supra; Williams v. Smith, 128 Ga. 306 (57 S. E. 801). No actual notice is alleged whereby the purchasers from Mrs. Cook and her vendees had knowledge of the fact that she was a purchaser at her own sale; and the consideration expressed in the deeds subsequently to the deed to Mrs. Cook expressed a fair consideration; and this being so, we can not hold, as contended by the plaintiffs in error, that there is constructive notice sufficient on .the face of the conveyances to the subsequent purchasers that the administratrix bought at her own sale, or that the transactions were not made in good faith. There is nothing in the record to show, that James Humphreys, who bought at the administratrix’s sale, was
It will also be observed from the allegations of the petition that the administratrix sold the land under an order from the ordinary, and the sale of property by an administrator under proper order from the court of ordinary would ordinarily divest the heirs of the estate of the title to the property sold. See Clements v. Henderson, 4 Ga. 148 (48 Am. D. 216); McDade v. Burch, 7 Ga. 559 (50 Am. D. 407); Patterson v. Lemon, 50 Ga. 231 (1), 235. Copelan v. Kimbrough, 149 Ga. 683, 686 (102 S. E. 162). The Civil Code (1910), § 4039, declares: “To divest the tit1 e-of the heir at law, the administrator must have authority to sell; if there be irregularities, or he fail to comply with the law as to the mode of sale, the sale is voidable, except as to innocent purchasers. And as to innocent purchasers the same is good and divests the title of heirs.” Merritt v. Jones, 136 Ga. 618 (71 S. E. 1092); King v. Cabaniss, 81 Ga. 661 (3), 667 (7 S. E. 620).
We conclude from all of the foregoing that the court did not err in sustaining the demurrer and in dismissing the petition.
Judgment affirmed.