116 Ga. 28 | Ga. | 1902
Lee Anna Bentley and Martha j. Carey, a minor, the latter suing by her guardian,- William Á. Carey, brought suit against John D. Moore and his wife, Lizzie E. Moore, alleging that plaintiffs are the children of Martha Elizabeth Carey, who was the daughter of John R. Moore, deceased; that they are the heirs at law of their grandfather, and as such entitled each to a one-fourteenth interest in his estate; that John D. Moore was the administrator upon the estate, and as such caused a tract of land to be sold, and became himself the. purchaser, and thereafter sold the land to his wife, Lizzie E. Moore, who had full knowledge of the fact that he was administrator and had bought the property at his own sale. The prayer of the petition was that the deeds-under which the defendants Moore and wife claimed title might be cancelled, and that the plaintiffs recover a one-seventh interest in the property, with mesne profits. To this action the defendants filed pleas, which were in substance as follows: (1) The land sued for was sold at administrator’s sale, as alleged. Before the property was sold, Moore, the administrator, who was also an heir at law and entitled to á one-seventh interest in the estate, agreed with six other persons, the fáther of both of the plaintiffs and guardian of the minor plaintiff being one of them, that they would bid in the land at the sale, if it did .not bring- a given price. - The land did not bring this price, and under the agreement referred to the property was. bid in'by one Richards forthe sum of $800. The'persons for whom Richards bid in the property,.not being-' able to resell the properly, finally prevailed upon Moore to buy the property from them and take the same at the amount which Richards paid for the property. Moore agreed to do this, and in pursuance of this arrangement he á's administrator conveyed the property to Richards, and Richards conveyed the same back to Moóre individually, who accounted to the estate for $800, the amount of the bid. The arrangement before the sale was that Moore should not have any further interest in the property after the sale than the one-seventh which he would have been entitled to as an heir at law. (2) Lizzie E. Moore purchased the property from John D. Moore, her husband, who conveyed the same to her by a deed, and at the time of the purchase she had no knowledge, notice, or belief whatever, that the plaintiffs claimed or would ever claim any interest in .-the property, nor did she have any notice that the title which Moore-had to the land was-either void or void
Attached to this plea is a long bill of particulars, consisting of items from August, 1895, to May, 1901, aggregating several thousand dollars, all claimed to be items of expense in connection with the permanent improvements alleged to have been placed upon the land. Some of these items are such as would be clearly connected with permanent improvements, others are such as would clearly not be so connected, and still others are items of expense resulting from the ordinary and usual repairs upon a mill which was on the property. Some of the items are apparently disconnected with improvements, either permanent or otherwise, and a number of the items are for expenses incurred after the suit was filed, and represent improvements alleged to have been made since that time. The plaintiff made an oral motion to strike all of the pleas above referred to, upon the ground that they presented no defense; and made special objection to the plea attempting to set off the value of improvements, upon the ground “that the same set up a mass of expenditures and was not so framed as to show any excess of improvements in value over mesne profits at the time of trial.” An order was passed striking all of the pleas except the one which alleged that Lee Anna Bentley had ratified the sale to Moore by receiving
1. It is familiar law that a purchase by an administrator at his own sale, either by himself or through an agent, is voidable at the instance of any person interested in the property. It is not essential to the application of this rule to a particular case that the administrator should be the purchaser of the entire interest in the property. A purchase by him at his own sale of any interest in the property renders the same voidable. The same reasons which make a purchase by him of the entire interest voidable at the instance of those who are interested in the property would apply with equal force where he was at all interested in the purchase. In the present case the administrator being interested to the extent of a one-seventh interest in the purchase at his own sale, the temptation to look to the interest of himself and his associates rather than to the interest of the heirs and creditors of the estate would be just the same as if he was buying the entire property.
2. As to property rights a wife is in this State a separate and distinct person from her husband. While transactions between husband and wife are closely scrutinized where the rights of third persons are involved, we know of no reason why a wife may not occupy in law the attitude of a bona fide purchaser for value without notice from the husband. A husband may sell to his wife property owned by him; and if under similar circumstances a third person would be protected in law as a bona fide purchaser without notice, the wife will be protected. On account of the relation which they occupy to each other, however, slighter circumstances might be sufficient to negative good faith and want of notice than would be sufficient in the case of strangers. It has been held that a wife could not be a purchaser at a sale where the husband was the
3. The' court did not err in' striking; the plea which set up that the guardian of Martha J. Carey had -not only agreed that the administrator might become one of the --purchasers at the sale, but also received from him as guardian the proportionate amount of the proceeds of the sale 'which would be due to her as the heir at law of her grandfather. The guardian had no authority to consent that the property of his ward might be purchased by the administrator in this irregular way. The guardián- had no right to sell the property of his ward at private sale;-and to consent that the administrator of the estate in which his ward was interested might purchase the property at the sale at a given price would be, in legal effect, a private sale of the interest of his ward. ' Having-no authority to enter into this arrangement with the-"administrator, the mere fact that he afterwards received from the administrator the proportionate ¿mount- of the proceeds which fell to his ward would not estop her from seeking to set aside the sale at-which the administrator was one of the purchasers. • See, in this connection, Groover v. King, 46 Ga. 101; Candler v. Clarke, 90 Ga. 550, 556.
4. The plea attempting to set off the value of; permanent im
5. At the trial the defendant introduced no evidence, and the | court, over the objection of the plaintiffs, allowed counsel for the j defendant to open and conclude the argument to the jury. This . ruling is assigned as error. Counsel insists that there is no law of force in this State which gives to a defendant in a civil case the right to open and conclude the argument to the jury in cases where no evidence is introduced in his behalf. It is said that the right of the defendant to open and conclude the argument in a criminal . case when he introduces no evidence is given in Penal Code,§ 1029, and that a similar right is given to the claimant in a claim case when no evidence is introduced in his behalf, under rule 13 of the superior courts (Civil Code, § 5644); and that there is nothing in the code which gives to the defendant in a civil case the right to open and conclude the argument simply because he introduces no evidence. The statement of counsel that there is nothing in the code in relation to the subject except the provisions above referred to seems to us to be correct; for in our investigations we have been unable to find any provision in the code which in express terms declares that the failure to introduce evidence on the part of the defendant in a civil case gives him the right to open and conclude the argument. It has been, within the knowledge of some of the present members of this bench, the practice for more than forty years for the defendant to take the opening and conclusion of the argument when he introduced no evidence, and not within the knowledge of any of us has the legality of this practice heretofore been brought in question. In 1849 it was held by this court that when an equity case was submitted to the jury on the bill, answer, and replication, and the defendant introduced no evidence, he was entitled to conclude the argument before the jury. Fall v. Simmons, 6 Ga. 265 (1). This has been uniformly since that time recognized as the rule in equity cases. See Ferguson v. Ferguson, 51 Ga. 341 (5); Cade v. Hatcher, 72 Ga. 359; Guess v. Granite Co., Id. 320. This court has also recognized that this is the proper rule of practice to be applied in civil cases other than equity and claim cases. Arthur v. Com., 67
6. Error is assigned, in Mrs. Bentley’s motion for a new trial, upon the refusal of the judge to allow W. A. Carey, her guardian, to testify that when he paid over to her her part of the proceeds ■of the sale which he liad collected from Moore, the administrator of her grandfather, it was stipulated that the payment from him to her of this amount should have no other effect than to transfer the fund to her possession, and that she receive the fund from him upon the express condition that her rights in the land which the administrator had bought should not be affected by her taking possession of the money. We 'think the court erred in refusing to admit this testimony. On the question as to whether Mrs. Bentley had ratified the purchase by the administrator at his own sale it
Judgment in each case reversed.