Knapp v. Harris

60 Ga. 398 | Ga. | 1878

Bleckley, Judge.

1. The case of Milledge vs. Bryan, 48 Ga., 397, construes the act of 1854, in relation to sales ordered at chambers. It is best to abide by that construction. The subject matter of the act is dealt witli by the Code in section 2327. There was no trust in the case before us, and the property was not under the jurisdiction of chancery by reason of pending litigation. The order or decree of sale was made without authority, and was, consequently, void.

2. Equity may, in some cases, interfere with the administration of the estates of deceased persons, or direct the management and disposition of property belonging to minors ; but, generally, executors, administrators and guardians are to resort to the court of ordinary for orders of sale, and such judgments as are necessary to supplement their general powers. If lawful debts are to be paid, and a sale of land for that purpose is needed, leave to sell is usually to be obtained from the court of ordinary, and not from a court of equity. This i$ now, and has long been, the system established in this state by statutory provisions.

3. The muniments of title offered in evidence and re-' jected, being, as a consequence of the foregoing positions, utterly void, the rejection was not error. As mere color of title they could have afforded no aid, the requisites of prescription being deficient in the element of time. See Morris vs. Tucker, this term.

4. It was irregular for the jury to notice the right of dower, that right being wholly de hors the case on trial. But the verdict, as a whole, is not vitiated by its reference to irrelevant matter, nor by any misdirection of the court touching that matter. What is said of dower, in the verdict, is mere surplusage, and is to be so treated.

Cited in the argument: Cobb’s Dig., 270; 2 Kelly, 31; acts 1853-4, pp. 59, 60 ; 49 Ga., 397; 10 Ib., 429; 1 Story Eq. §532-4; Cobb’s Dig., 228 ; Code, §4042; 3 Ga., 108, 111; 8 Ib., 244; 22 Ib., 287; 4 Ib., 152, 154; acts of 1851-2, p. 95; Cobb’s Dig., 313, 319, 323, 324, 328; 13 Ga., 8 ; 47 Ib., 195, 209, et seq ; 8 Ga., 244; 40 Ib., 370; 50 Ib., 235 ; 11 Ib., 1; 8 Ib., 236 ; Code, §1821; Daniell’s Ch. Pr., 97, 98; Code, §4205, 418442 Ga., 238; 27 Ib., 562; Sanford vs. Sanford, 58 Ga., 259; 10 Ib., 224.

Judgment affirmed.