James v. Little, 135 Ga. 672

James v. Little

135 Ga. 672 | Ga. | 1911

Holden, J.

(After stating the facts.) The heirs were not content to permit the estate to pass through an administration in the usual way, by allowing the property sold by the administrator and the proceeds of the estate distributed among the heirs after payment of debts and expenses of administration; but they made a private agreement with the administrator, by virtue of which he was permitted to bid on the property at his own sale and buy it in, with the promise on his part that “he would see that they should be paid, as heirs and distributees of said estate, the sum of $600 each.” This promise was that of the administrator in his individual capacity, and not one in his capacity as administrator. The administrator could not bind the estate for the fulfilment of' such a promise, and he was not liable on his bond for a failure to perform it. The bond of the administrator was conditioned on the discharge of his duties as administrator, and a breach of this promise was no breach of his bond. Hence a refusal to perform his part of this contract with the other heirs involved no violation of his duty as administrator, and such refusal gave no right of action to the other heirs to require the administrator, in the settlement of the estate, to account for the real value of the property sold, which is alleged to be greater than the amount at which the administrator bid it off at his sale of it. After the administrator bid off the property and, as administrator, made a deed to himself as an individual, the other heirs, the plaintiffs, ratified in writing this deed. This placed in the administrator as an individual the legal title to the property as far as the heirs were concerned. A purchase by an administrator at his own sale is voidable and not void, and the heirs, as far as they are concerned, may at their election affirm or disaffirm it. Counsel for plaintiffs in error cite authorities to the effect that a purchase by an administrator at his own sale is illegal and prima facie fraudulent, and, however the formal title may be, he holds the property under the implied undertaking which the law casts upon him; but in this case the plaintiffs agreed before the sale that the administrator might purchase thereat, and also ratified his purchase after he had bought at his own sale, thereby making the purchase valid as far as the plaintiffs are concerned. When the plaintiffs ratified the sale they . knew at what price the administrator bought it; and if they elected to ratify the sale, their reliance on the promise of the administrator *676as an individual to see that they were paid $600 each as their distributive shares, and the refusal of the administrator to carry out this promise, certainly gives the heirs no right of action on the bond of the administrator for the 'full value of the properly, alleged to be greater than the amount for which it was bid off by the administrator. This conduct of the plaintiffs, vesting a valid legal title, as far as they are concerned, in the administrator individually, placed it in the power of the administrator to convey, as far as the plaintiffs are concerned, a valid legal title to others, which the petition alleges the defendant did. Under such circumstances the plaintiffs could not hold the administrator, in his ca-^ 'pacity as administrator, and the sureties on his bond,' in a suit thereon, liable for the real value of the property because the administrator violated his agreement. It is claimed that the agreement by the plaintiffs that the administrator might buy the property at his own sale, and their ratification of his purchase thereat, was void, because the administrator perpetrated a fraud on plaintiffs by representing to them that it would be to the best interest of plaintiffs for the administrator to be allowed to bid on and buy the property, when in fact it was not for their best interest, and by his subsequent refusal to pay them $600 each as their distributive shares; as the defendant, who was a brother of plaintiffs and administrator of the estate, sustained a confidential relation to plaintiffs. The property to be sold was real estate in the city of Augusta, and its value was known, or could have been known, to plaintiffs as well as defendant, as far as disclosed by the petition,- and no reason is alleged why the statement of the administrator to plaintiffs that it would be to their interest for him to buy the property could have misled them.' 'But if any fraud by the administrator was perpetrated on plaintiffs, as contended by them, they could not by reason thereof hold the former in his capacity as administrator liable for the market value of the property purchased by him at the sale. What has been said is on the theory that the agreement between plaintiffs and the defendant was that the latter might buy the property for himself individually. The amendment to the petition' indicates that it was the agreement between the administrator and plaintiffs that the former should buy the property at the administrator’s sale for “their benefit and the estate.” It is unnecessary, to determine whether the petition, prop*677erly construed, means that the plaintiffs and the administrator agreed that the latter should buy the property for himself or for the heirs or for the estate; because, whatever may have been the agreement in this respect, no right of action exists requiring the administrator to account in the administration of the estate for the full value of the property. After the plaintiffs ratified the deed made by the administrator to' himself individually, thereby placing it in the power of the administrator to convey, as far as plaintiffs were concernéd, a valid legal title to the property to others,' and the administrator did so convey it, certainly this affords a good reason, if there were no other, why the plaintiffs could not thereafter hold the administrator, in his official capacity, and the surety on his bond, liable for the market value of the property so conveyed, even if it was the agreement that the administrator should buy the property for the benefit of the heirs or estate. ’ The petition alleges as follows: “That said Little, after persuading petitioners to allow him to bid at his own sale, and after they had ratified his purchase of said property at his own sale, on account of the promises made by said Little, administrator, before the sale, now refuses to carry out his promise made to them, aforesaid, and -declines to settle with them, as distributees, in accordance with his said promise made before the sale, and says that if. any settlement is made with him, as administrator, with petitioners as distributees, they must settle on the basis of what he paid for the property at the sale, to wit, the sum of $2,240.00.” No complaint is made that the administrator in the administration of the estate will not account to 'the heirs for the amount at which he bid off the property at the administrator’s sale. A proper construction of the allegations and prayers of the petition requires us to hold that the suit is not to require the administrator to account for such amount, or to require an accounting generally, but that the suit is solely to require the administrator to account in the administration of the estate for the market value, of the property sold by him at administrator’s sale — alleged to be greater than the amount at which he bid it off at said sale. This the plaintiffs, under the allegations of the petition, can not do; and the judgment of the court dismissing the petition on the general demurrer of the administrator and the surety on his bond is

Affirmed.

All the Justices concur.