93 Ga. 582 | Ga. | 1894
The land involved in the present case was once owned by W. H. D. Inman, who died December 18th, 1858, leaving a will, executed on the preceding day, which, after devising the land to his wife, contained in the same item a provision that: “ At my wife’s death, I will all my property to my children, to be equally divided between them; and at their death, the property is then to go to their children. In the event that my wife should marry, the property is then to be equally divided between her and my children, she drawing a child’s part.” Properly construed, this will conveyed only a life-estate in the property to the wife in the event she should not again marry. Mrs. Inman died May 7th, 1881, having never again married. There were four children of the testator and his wife who survived him: Mrs. Taylor, Mrs. Barry, Mrs. Agnew,.and a son who ■died without issue before his mother. The- youngest child was twelve or thirteen years old when the testator died. In 1882 the executor of the will, under an order from the court of ordinary, advertised and sold the land. It was bid off by Mrs. Taylor, Mrs. Barry,, and a Mrs. Jones. The last paid cash for her portion; the other two paid no money, but, by an agreement with the executor, the undivided one third interest to which each was entitled was conveyed severally to her, “ and considered as so much money paid in.” The money which
Napier bargained with Mrs. Barry for an undivided, one third interest in the land, taking from her a bond. for titles to the same. He also bargained with Charles-Taylor and Mrs. Chandler for their respective interests, in the land, taking bonds for titles from- them: It seems, though it does not unequivocally appear, that Napier had paid a' part of the purchase money to each of those-from whom he held bonds for titles. He had never, however, had possession of the land, or any part of the same. In 1890 he filed a petition for a partition of th.e land, alleging that, on account of the location of a mill-site upon the same, it could not be equitably divided in kind, and therefore praying a partition by sale. -Mrs.. Jones, and Eddie and John Taylor,' Jr., were made parties to this proceeding, and the last two being minors,, a guardian ad litem; was appointed for them, who duly accepted the appointment. Neither Mrs. Barry, Chai’lesTaylor nor Mrs. Chandler was made-a party, nor were the children of Mrs. Barry residing in Alabama, nor the child of Mrs. -Agnew already mentioned. Mrs. Jones-filed objections, alleging, among other things, that the persons just mentioned were necessary parties; and that Napier, having no title to the land, was not entitled to-a partition.. After the proceedings for a -partition were begun, Mrs. Chandler conveyed-to Napier an-undivided one twelfth interest in the land. - Upon an agreed statement of facts, which was substantially as above stated,
Under the facts thus appearing, we think the judge below erred. Conceding, for ' the purposes of -this case, (though we do not so decide), that the executor’s sale passed to Mrs. Barry a good title to one undivided third of the land, we have no doubt that she was a necessary party to the case; and so were Charles Taylor, and Mrs. Chandler, when the proceedings were instituted. It may be, by reason of the fact that Mrs, Chandler, pending the proceedings, had conveyed to Napier her interest in the land, that she would not have been a necessary party at the hearing; but we are at a loss to perceive how any partition by sale could be made without having Mrs. Barry and Charles Taylor before the court. They still retained the title to their respective interests in the land,'and .the commissioners could not, by virtue of an order which was binding upon neither of these parties, make any sale which would divest their title, no provision whatever having been made for applying to their claims for unpaid purchase money any portion of the proceeds of such sale. It seems to us that an attempted sale under these circumstances would necessarily result in sacrificing the property, which would, of course, be unjust to all the parties at interest. At any rate, we hold that, without making Mrs. Barry and Charles Taylor parties, the order in question was' improperly granted.' The fact that Mrs, Barry was a non-resident did not dispense with the necessity of making her a party. In Childs et al. v. Hayman, 72 Ga. 791, it was decided that a non-resident, having an interest in land for the partition of which proceedings were instituted, but who was not made a party to such proceeding nor served with a notice of the
This case is clearly distinguishable in principle from that of Fulton County v. Amorous, 89 Ga. 614, in which it was held that one. in possession of land under a bond for titles from the. true owner, with the purchase money partly paid, was entitled to. full possession, and consequently, had a cause of action against the county whei’e a portion of the premises had been taken or damaged for public purposes; especially, where the acquiescence of his vendor was affirmatively shown by producing a conveyance from the latter, made pending the action, passing the absolute title in fee simple. To allow one holding land under a bond for titles, and in possession thereof, to protect the same from waste and destruction, where the rights of his vendor will not be thereby affected, is quite a different thing from allowing such a person to cause an absolute sale of the property which might result in loss either to his • vendor, to- the purchaser at the sale, or to others having an interest in the property sought to be partitioned.
There may be another difficulty about the case, which
We shall not, however, attempt at this time to answer the question above ^ suggested, because, irrespective of the same, and for reasons already stated, Napier’s petition for a partition should have been disallowed.'
Judgment reversed.