107 Ga. 395 | Ga. | 1899
Mrs. L. M. Newman, the defendant in error, brought her petition to the January term, 1896, of Haralson superior court, against Mrs. S. F. Starr, the plaintiff in error. The petition made substantially the following case: On the 26th day of January, 1893, the husband of Mrs. Starr died, seized and possessed of eighty acres of land. On the 1st of June, 1894, the ordinary of Haralson county appointed James Beall administrator of the estate of said deceased, by the request and at the instance of his widow, Mrs. Starr. She waived her right to dower in the land, and requested the administrator to wind up the administration by selling the land and paying the balance of the purchase-money on the same, and by paying the debts of said deceased. Acting upon this request, the administrator obtained from the ordinary an order for the sale of the land, and on the second day of October, 1894, it was accordingly sold, after due advertisement, to M. R. and Joel Phillips, they being the highest and best bidders. • On the 23rd day of October, 1894, the petitioner, without any knowl-. edge or notice of the facts above set forth, purchased the property from the said M. R. and Joel Phillips in good faith, paying therefor full value. After the sale Mrs. Starr removed
After the plaintiff announced closed, the court directed a verdict for the plaintiff, finding for her the premises in dispute, and further finding against the dower. The defendant assigns this judgment as error, and also complains of various rulings of the court in the progress of the trial. It does not appear from the record that the defendant below offered any testimony after the plaintiff had closed. The testimony introduced on behalf of the plaintiff showed a sale of the property by the administrator; that she had acquired title from the purchaser at
It does not appear from the record that anything was said by the widow to the administrator with reference to her right to dower, either before or after the sale; and the controlling
It is not pretended that the purchaser at the administrator’s sale, or that his successor in title, the defendant in error, did not know before their purchases that the husba,nd died “seised .and possessed” of this land, and that his widow was still in life. The law charges the world with notice of the widow’s Tested right of dower in such a case, and this right continues to exist unless barred in some way recognized by law, whether or not she has asserted the right by a proceeding in court. The sale by the administrator does not divest lief of this right. It does not necessarily follow, however, that the sale is void. He had a right to sell for the purpose of paying debts, but his •sale of the decedent’s land, where dower is not barred, is always subject tb the widow’s right of dower, -and the purchaser can get no better title than the administrator can sell.’ If, therefore, the application of the widow for a year’s support out of the proceeds of the sale amounts to any ratification of the sale, it was simply a ratification subject to her dower interest, she having done nothing which the law would construe into a waiver of that interest, or into an estoppel barring her of her right to assert it. In her conversations about the sale of this land she said nothing with reference to a year’s support. After the sale it appears that she stated to the administrator that
A demurrer was filed to the petition, on the ground that petitioner had a common-law remedy, and that there was no equity in the petition. Section 4702 of the Civil Code provides that every person interested may enter a traverse to the return of commissioners appointed to admeasure dower. The following section declares that if the issue be found against the return of the commissioners, then the court shall issue a new writ to other commissioners, etc. It would seem from these provisions that the parties interested, in contemplation of the statute, are the administrator, heirs and creditors, and that no provision is made for a third party claiming title filing objections to the return, unless he occupied a position as tenant in common with the widow, as was the case in Harris v. Coats, 75 Ga. 415. In any event, the common-law remedies are not fully adequate for all the relief sought, and the equitable proceeding will perhaps avqid a multiplicity of suits. But we think the petition is objectionable in that it does not fully and specifically set forth what conduct and sayings of the widow amounted to a waiver of her right to dower, and how such conduct affected the rights of petitioner. There was no special demurrer, however, on this ground, and the petition was sufficient as against a general demurrer. Bishop v. Woodward, 103 Ga. 281.
There are various other rulings of the court Complained of in the bill of exceptions, which it is unimportant to consider, for the case is controlled by the principles embraced in the headnote. From the facts in the record we do not think the testimony authorized, much less demanded the verdict for the plaintiff, and the judgment of the court so directing is accordingly
Reversed.