Livingston v. Peacock

155 Ga. 261 | Ga. | 1923

Per Curiam.

The plaintiffs insist that the sale of the land in question by Lovett Brown, the executor, was not a sale made bona fide by the executor as such; that under the facts it was voidable, because the executor was himself indirectly the purchaser of the lot of land at his own sale; that he fraudulently and illegally procured H. J. Sapp to bid the land off for him, the executor making a deed to Sapp for the land, and on the same day receiving a deed from Sapp, conveying the land to himself for the same consideration as named in the deed to Sapp. There was evidence tending to support this contention; and the plaintiffs duly requested the court in writing, to give the following in his charge to the jury: “ If you believe from the evidence that •prior to the execution and delivery of the deed from Brown as executor to II. J. Sapp there was an agreement between Brown and Sapp that Brown was to take over Sapp’s bid or take from . Sapp a conveyance of the land, then the sale is voidable at the petition of the plaintiffs; and this would be true even though there was not any agreement prior to the sale, and even though Brown paid Sapp a profit on his bid.” The court should have given the charge as requested. In the case of Ridgeway v. Ridgeway, 84 Ga. 25 (10 S. E. 495), where a question very similar to that presented here was under consideration, it was said: “ There were two administrators, _ and they had joined in procuring an order for a sale. One of them caused the land to be sold in the presence of the other. It was bid off by a third person (Ware) for about half its value. He was immediately offered by the selling administrator fifty dollars for his bid, and at once agreed to take it. When this bargain was made, Ware had not acquired title to this land; it still belonged to the estate. He had neither paid for it nor taken a conveyance. The transaction, therefore, was not essentially different from a purchase by an administrator at his own sale. The administrator did purchase before the sale was consummated. He raised Ware’s bid fifty dollars, giving Ware the benefit of the advance instead of giving it to the estate. It would have been better for the estate if he had bought directly from himself rather than through Ware. What followed between them, except as to the fifty dollars, was an empty formality colored with ink, for the purpose of investing the administrator with the appearance of a paper title. He conveyed to Ware, who gave him a cheek upon a bank for the amount of the bid; then Ware conveyed back to him, took up the cheek, destroyed it, and received fifty dollars, which was the only money passed between the parties. . . The outward and visible circumstances of the transaction went strongly to establish the whole case of fraud set up by the complaint. The code . . says that fraud being in its nature subtle, slight circumstances may be sufficient to establish it. Here the circumstances were more than slight. . . It is possible that the combination prior to the sale, between the administrator and auctioneer, and between the administrator and bidder, which is alleged in the complaint may not have existed. Whether it existed or not, the deeds ought to be set aside. In Alexander v. Alexander, 46 Ga. 290, Judge McCay says, ‘ The purchase by the trustee is prima facie a fraud; and however the formal legal title may be, he holds the property as trustee under the implied understanding which the law casts upon him.’ . . If there was no fraudulent combination prior to the sale, the result, legal and equitable, flowing from the other facts' of the case, would be the same.”

The ruling made in the second headnote requires no elaboration. The error in refusing the written request considered in the first division of this opinion requires the grant of a new trial, and the error was of such character as to affect the entire case and to require another hearing on the issues involved.

Judgment reversed.

All the Justices concur.