140 Ga. 62 | Ga. | 1913
(After stating the foregoing facts.) The controlling point arises out of exceptions to the rulings of the court refusing to consider objections to the fairness 'and validity of the sale of the property sought to be partitioned, and to its confirmation by the court. When the exceptors offered their written objections to the validity of the sale, an oral demurrer thereto was sustained, on the ground that the objections to the sale and the motion to withhold' confirmation were presented too late, and that the sale could not be set aside in this proceeding. This brings up the question whether it is permissible, under the statute for the partition of land, to contest in that proceeding the validity of the sale made under the order of the court; or must a dissatisfied co-tenant go into equity for that purpose ?
The statute. evinces a legislative purpose to afford an effective mode for the partition of land, without forcing the parties into equity. Power is reserved to the court, in ordering a sale of the land, to prescribe reasonable regulations and equitable and just
It is argued that it is only where the decree authorizing a sale is interlocutory that confirmation is necessary, and that the order directing a sale of the property for division of the proceeds is final in its nature. It is true thai it has been decided that where an application is made to the superior court for the partition of land by sale, and the judge, after hearing the evidence, appoints commissioners, and orders them to sell the land, such judgment is so far final as to authorize the objecting party to bring the case to the Supreme Court for review of that judgment. Lochrane v. Equitable Loan &c. Co., 122 Ga. 433 (50 S. E. 372). But that holding was put upon the peculiar provisions of the statute as affording a remedy for exception to such judgment, and not as dispensing with the necessity of confirmation of the sale. The power of the court to impose regulatory terms in the conduct of the sale, and the statutory requirement of a report of the persons conducting the sale as a precedent step to the division of the proceeds, sufficiently make it appear that the legislative intent was to require a confirmation of the sale. Indeed in this case the court expressly confirmed the sale in his order dividing the proceeds.
The objection urged against the sale was its unfairness and the gross inadequacy of the price at which it was sold by the commissioners. The plaintiffs in error are minors, who have a guardian, and owned a three-fortieths (3/40) interest in the land. The purchaser at the sale and his wife owned ninety-three one hundred and twentieths (93/120) of the land. It is alleged, that the guardian was inadvertently misled, by a conversation he had with the presiding judge, into believing that he would be given notice when the sale would take place; that the land was worth $8,000, and the purchaser at the commissioners’ sale had offered to buy the interest of plaintiffs in error on the basis that the land was worth $5,000; that the purchaser bid it off for the sum of $2,000, which was the only bid made for the land; that the guardian of the plaintiffs in error is a man of means, and is their uncle, and he
Judgment reversed.