34 Ga. App. 325 | Ga. Ct. App. | 1925
N. A. Wimberly and his wife, Dora D. Wimberly, owned a lot of land in Bulloch county, Georgia, as tenants in common equally interested. He died intestate in 1918, leaving his widow and eight children and the children of a deceased child as his heirs at law. It seems that the widow claimed only a child’s part of the estate. On December 5, 1918, after her husband’s death, she and three of the children, namely, O. R. Wimberly, Mrs. Leslie L. Newton, and J. P. Wimberly, executed a deed to secure a debt, conveying their several undivided interests in the tract, amounting in the aggregate to fourteen twentieths, to S. B. Lufburrow, for a loan of $500. This deed contained a power of sale; and, default being made in the payment of the debt, the property
No administrator had been appointed on the estate of N. A. Wimberly at the time of the making of the security deed, but Mrs. Wimberly, the widow, later applied for letters, and was duly appointed and qualified in October, 1920. She immediately applied for leave to sell the one half undivided interest of her deceased husband in the lot of land in question, alleging that a sale of the same was necessary for the purpose of paying the debts and for distribution. The usual citation was issued and published, and in November, 1920, an order was passed by the court of ordinary, granting the application. In pursuance of the authority thus granted, she exposed the lands for sale at public outcry in the following December, at which sale J. R. Wimberly was the purchaser. The administrator’s deed was duly executed and delivered to him, conveying the one half undivided interest in the lot, which had belonged to the in
In this State, as at common law, the title to realty vests immediately in the heirs at law, except that descent may be intercepted and title divested whenever it becomes necessary for an administration for the purpose of paying debts or for the purpose of distribution among the heirs. Lester v. Toole, 20 Ga. App. 381 (2) (93 S. E. 55). The plaintiffs in this case, whether personally notified of the application of the administrator for leave to sell or not, are concluded by the judgment granting the leave. In McDade v. Burch, 7 Ga. 559 (50 Am. D. 407), the Supreme Court held that an order of the court of ordinary directing the sale of lands belonging to an estate could not be collaterally attacked, and that, when property was about to be sold at an administrator’s sale in pursuance of such a judgment, it was not competent for an heir who had interposed a claim to the property to prove that the estate was settled and the land divided without an administration, and that there were no debts to be paid. Thus, the evidence in the present case that the decedent owed no debts is without any effect on the issue for determination. This is not a suit by an administrator against an heir for land. In the case of Park v. Mullins, 124 Ga. 1072 (1) (53 S. E. 568), it was held: “The heir, like all other persons interested in the estate, is bound by the judgment authorizing the sale of the land, except in the single instance where the order of sale is used as evidence in an action of ejectment against him to recover the land from his possession.” See also Brown v. Glover, 156 Ga. 640 (119 S. E. 607). The sale of the property by the administrator, by proper order from the court of ordinary, ordinarily will divest the heirs of all title to the property sold. Merritt v. Jones, 136 Ga. 618 (1) (71 S. E. 1092); Isom v. Nutting, 153 Ga. 682 (113 S. E. 197). But for the proviso in the administrator’s deed, that it was made subject to the security deed in favor of Lufburrow, he would even have been divested of that part of his security which had belonged to the estate. This proviso, however, preserved his security, and he was entitled to sell the land
Judgment reversed.