181 Ga. 61 | Ga. | 1935
Mrs. Lula B. Patterson filed suit against John D. Patterson and Mrs. Birdie Garner as administrators of the estate of Ella J. Patterson, deceased, and J. R.
The following allegations were made in the petition: The plaintiff purchased from her husband, John D. Patterson Jr., his undivided one-fifth interest in the estate of his mother, Ella J. Patterson, deceased. John D. Patterson and Mrs. Birdie P. Garner were the administrators of the estate. J. R. Garner is the husband of Mrs. Birdie P. Garner, one of the administrators. The chief asset of the estate was a house and lot on Peachtree Street, Atlanta, Georgia, appraised at $25,000. Mrs. Ella J. Patterson died on December 16, 1928. The real estate was not offered for sale until the spring of 1932. It was subject to a loan of $5500. When Mrs. Patterson died in 1928, there was cash on hand amounting to $3431.99. In 1932, when the real estate was offered for sale, all of the cash had been spent, but none of it had been applied on payment of the mortgage on the real estate. The property was advertised for sale three times tin 1932: during the month of March, for sale on the first Tuesday in April; the second time, during the month of April, for sale on the .first Tuesday in May; and the third time, during the month of May, for sale on the first Tuesday in June. For some reason unknown to petitioner, no sale was had on the first Tuesday in April, 1932. On the first Tuesday in May, 1932, petitioner’s husband, John D. Patterson Jr., was present in front of the court-house door at the hour for legal sale, and had with him a responsible party ready, willing, and able to bid on the property the sum of $20,500, and to pay $7000 in cash and give other property of the value of $8000. Without reference to the property which was offered in addition to the cash, the prospective purchaser on the ground ready to bid on the property was ready to pay $7000 cash and assume the loan thereon of $5500. John D. Patterson, one of the administrators, exercising control of the sale, was notified in person by the husband of petitioner that the prospective bidder was on hand ready to
Before the hearing of the demurrer to the petition the $5500 mortgage on the property in question was foreclosed under an order of court, and the net proceeds of the foreclosure sale, after paying off the principal and interest of the loan and all costs, was only $791.72.
Under the allegations in the petition no cause of action is shown against the Fidelity and Deposit Company. One of the grounds of complaint is that the administrators did not sell the real estate “promptly” or “at the time provided by law, at the expiration of one year,” and did not offer the real estate for sale until June, 1932, when the real-estate market was at the lowest for many years, and that at the time of the sale the property was fraudulently and collusively sold to the husband of one of the administrators, Mrs. Birdie P. Garner, at an inadequate price; and
It is alleged in the petition that the administrator’s sale, actually made in the circumstances shown in the petition, was illegal and void. Conceding that this is true, the petition does not make a case which would render the surety liable to the plaintiff for a breach of the administrator’s bond. If the sale was void and of no effect, parties having such interest in the property as would authorize them to have the sale thereof declared void would be entitled, in proper proceedings, to have the sale set aside and to have the property declared to be a part of the estate of the deceased: for if the sale was illegal and void, no title to the realty passed out of the estate, and the property so sold is still a part of the estate, or could again be made a part of the estate in proper proceedings! So, assuming that there had been a breach of duty, no damage resulted, and there could be no recovery on behalf of the plaintiff against the Fidelity and Deposit Company on the allegations in the petition. If the petitioner had a one-fifth interest in the Patterson estate before the void sale, she still had that interest after the sale, if she wished to assert it. The petition alleged that the sale by the administrators to J. R. Garner, the husband of one of the administrators, was illegal and void, and set forth in detail the basis of this allegation. If the sale is void for any reason — because of an invalid court order, or because of fraud on the part of the administrator, or for other reason, the plaintiff was not injured by the void sale, as the heirs at law would not thereby be divested of their title; and the surety of the administrators would not be liable for the breach of their bond.
The fact that the real property of the Patterson estate had been subsequently lost by a foreclosure does not affect the case as made in the petition. In Hoyt v. Ware, 156 Ga. 98 (118 S. E. 734), it was held -that where the realty belonging to an estate was sold by an administrator under an invalid order, title to the property did
Judgment affirmed.