187 Ga. 528 | Ga. | 1939
"An- administrator may not sell property held adversely to the estate by a third person; he shall first recover possession.” Code, § 113-1714. Under this section it has
In the present case LaGrange Banking and Trust Company, by and through the State Superintendent of Banks, brought an action against Anthony Porter for the recovery of a described tract of land. The petition alleged that the defendant "is in possession of the same, enjoying the rents and profits, and has been appropriating the same to his own use, since the first day of January, 1933.” The plaintiff claimed title to the land under and by virtue of a deed from the administratrix of the estate of Emma Mowers Lipscomb, and at the trial introduced a deed from such administratrix to itself, dated November 10, 1933. This deed constituted, in so far as the ruling here made is concerned, the entire evidence introduced at the trial. The court directed a verdict for the plaintiff. The defendant excepted to the overruling of his motion for neAV trial based on the general grounds and certain special grounds.
The allegations of the petition, properly construed and taken in connection with the deed above mentioned, show that at the time of the sale of the land and the execution of the deed in pursuance thereof the property was in the adverse possession of the defendant. In this respect the allegations of the plaintiff’s petition constituted evidence against it, though not introduced in evidence, since they were not clarified or stricken by amendment. Code, § 38-402; Wood v. Isom, 68 Ga. 417; Peacock v. Terry, 9 Ga. 137 (6); Royal
The administratrix’s deed introduced in evidence recited that the land was sold “by virtue of an order of the court of ordinary of Troup County, granted at the regular October term, 1933, of said court.” No order of the court of ordinary granting leave-to sell the land was introduced in evidence. An administrator can not sell property of his intestate without an order of the court of ordinary, and a sale without such order is void and passes no title. Whitehurst v. Mason, 140 Ga. 148 (78 S. E. 938); Dowling v. Keen, 187 Ga. 394 (200 S. E. 789), and cit. In showing title-by an administrator’s deed, the order of the ordinary granting leave to sell must be produced. It is not sufficient that it is recited in the deed. Yahoola River &c. Mining Co. v. Irby, 40 Ga. 479 (3); Clements v. Henderson, 4 Ga. 148 (48 Am. D. 216); Waller v.
The court erred in overruling the motion for new trial.
Judgment reversed.