No. 7682 | Ga. | Dec 15, 1930
Lead Opinion
(After stating the foregoing facts.)
The petition alleges that the plaintiff was born on February 5, 1900. The suit was filed on February 4, 1928. The petition fails to allege that plaintiff was in possession of the premises, or had ever been. One becomes of full age on the day preceding the twenty-first anniversary of his birth, on the first moment of that day. 31 C. J. 987, § 4 (2); Browne’s Blackstone’s Com. 155; U. S. v. Wright, 197 F. 297" court="8th Cir." date_filed="1912-05-23" href="https://app.midpage.ai/document/united-states-v-wright-8783849?utm_source=webapp" opinion_id="8783849">197 Fed. 297 (116 C. C. A. 659). The Civil Code (1910), § 3019, provides that the age of legal majority in this State is twenty-one years; until that age all persons are minors. According to the foregoing rule, the plaintiff attained the full age
It appears from the petition that the plaintiff was over twenty-eight years of age, and that the defendants had had actual possession since 1916. It is alleged that Sarah Beedles conveyed a life-estate to John Dent, and a copy of the deed was attached to the amendment of the petition. This instrument purports to have been made in consideration of Dent taking care of Sarah Beedles in an ample and substantial manner, and for the natural love and affection she had for her brother. The deed shows that it “is to be void, and the maker of same upon her motion can so declare it, unless said John Dent amply provides for Sarah Beedles in a comfortable and substantial manner, and the maker of this deed is to be the judge of same. Upon the death of said John Dent the property herein reverts back to the maker of this deed. If said John Dent should ever encumber said property, then this deed shall immediately become void, and title revert back to the maker thereof.” It is insisted that John Dent acquired only a life-estate by virtue of this deed, and that as to the twenty-acre tract the sale by the administrator was void because John Dent held only a life-estate. But John Dent as administrator of the estate of Sarah Beedles obtained an order for sale, and offered the entire fee-simple title at administrator’s sale. It has been held that an administrator can sell a lesser estate under an order to sell a greater. King v. Cabaniss, 81 Ga. 661 (7 S.E. 620" court="Ga." date_filed="1888-10-03" href="https://app.midpage.ai/document/king-v-cabaniss-5563204?utm_source=webapp" opinion_id="5563204">7 S. E. 620); Kingsbery v. Love, 95 Ga. 543 (22 S.E. 617" court="Ga." date_filed="1895-01-14" href="https://app.midpage.ai/document/kingsbery-v-love-5566094?utm_source=webapp" opinion_id="5566094">22 S. E. 617); Robinson v. Smith, 159
The petition alleges that John Dent, the administrator, perpetrated “a fraud and deceit” upon the plaintiff, by procuring letters of administration in the court of ordinary upon the representation that he was the next of kin and sole heir, when in fact the plaintiff was the sole heir; and by procuring an order from the court of ordinary to sell the land for the payment of debts, when in fact there were no debts; and by an indirect purchase of the land at his own sale, which purchase plaintiff has a right to set aside. It will be observed that the petition does not allege that the defendants participated in any of the alleged fraud; but it is alleged that the purchasers had constructive notice sufficient to put them upon inquiry, and that their failure to press this inquiry to the point of discovery that the plaintiff and not John Dent was the true heir destroyed their status as innocent purchasers for value without notice. If it be conceded that John Dent did obtain the title to the land in controversy by fraud in 1914, no sufficient notice to
“An administrator’s deed, accompanied by the order of the ordinary granting leave to sell, is not mere color of title, although the letters of administration may not be produced. When the order of the court of ordinary granting leave to the administrator to sell the land belonging to the estate of his intestate has been shown, the law presumes that all has been done which was necessary to.have been done before the same was granted. This includes not only the necessity of the sale, and that it would be for the benefit of the heirs and creditors, but also the fact that the applicant was the administrator and authorized to make the sale.” Roberts v. Martin, 70 Ga. 196; Bunger v. Grimm, 142 Ga. 448, 450 (83 S.E. 200" court="Ga. Ct. App." date_filed="1914-10-20" href="https://app.midpage.ai/document/waters-v-state-5607339?utm_source=webapp" opinion_id="5607339">83 S. E. 200, Ann. Cas. 1916C, 173). In Copelan v. Kimbrough, 149 Ga. 683, 685 (102 S.E. 162" court="Ga." date_filed="1920-01-15" href="https://app.midpage.ai/document/copelan-v-kimbrough-5582915?utm_source=webapp" opinion_id="5582915">102 S. E. 162), it was said: “The controlling question is whether the order of the court of ordinary granting leave to sell the land is void. If it is void, it may be attacked collaterally. If valid on its face, it can not be collaterally attacked. . . The court of ordinary has general jurisdiction of
It is contended by the plaintiff that the sale by the administrator to Emily Eing, which was made at public outcry on the first Tuesday in October, 1914, was in reality a sale by the administrator to himself, because he bought back as an individual the property on the same day that he as administrator conveyed it away. A sale by an administrator to himself is not void but merely voidable. Civil Code (1910), § 4120. The fact that the deeds were made on the same day and recited the same consideration does not amount to a void administrator’s sale, and notice of the alleged fraud is not presumed. Warner v. Hill, 149 Ga. 464 (100 S.E. 393" court="Ga." date_filed="1919-10-01" href="https://app.midpage.ai/document/warner-v-hill-5582802?utm_source=webapp" opinion_id="5582802">100 S. E. 393); Isom v. Nutting, 153 Ga. 682, 685 (113 S.E. 197" court="Ga." date_filed="1922-06-19" href="https://app.midpage.ai/document/isom-v-nutting-5584046?utm_source=webapp" opinion_id="5584046">113 S. E. 197). As the Couches paid value in money for the land purchased, they are
The Civil Code (1910), § 4622, provides that actual fraud consists of any kind of artifice by which another is deceived. Constructive fraud consists in any act of omission or commission contrary to legal or equitable duty, trust or confidence justly reposed, Avhich is contrary to good conscience and operates to the injury of another. The former implies moral guilt; the latter may be consistent with innocence. Fraud which will prevent possession of property from' becoming the foundation of prescription must be actual or positive fraud, not constructive or legal fraud. § 4177. The petition did not allege that the defendants participated in the fraud, if any, as in Cowart v. Young, 74 Ga. 694, and West v. Rodahan, 46 Ga. 553, cited by counsel for the plaintiff.
The present suit is not one in ejectment. The plaintiff contends that the title to the land in controversy is iioav in her and has been ever since the death of Sarah Beedles; and the purpose of this equitable action is to remove certain clouds on her title, to have title decreed in her, and to cancel certain deeds which she insists are clouds on her title. In Weyman v. Atlanta, 122 Ga. 539 (50 S.E. 492" court="Ga." date_filed="1905-03-27" href="https://app.midpage.ai/document/weyman-v-city-of-atlanta-5574160?utm_source=webapp" opinion_id="5574160">50 S. E. 492), this court held that in order to maintain a petition to remove a cloud on title, either the land must be wild land, or it must appear that the plaintiff is in possession, or that
Applying the foregoing rulings to the facts alleged in the petition, the plaintiff had no right to recover; and the court below did not err in sustaining the demurrer to the petition as amended, and in dismissing the case.
Judgment affirmed.
Concurrence Opinion
I concur in the judgment rendered. I also concur in the general principle, which has long been recognized, that one becomes the full age on the day preceding the twenty-first anniversary of his birth. I do not concur, however, and respectfully dissent from the conclusion that prescription by possession under color of title for seven years ripened on February 3, 1928, as against one who, born on February 5, 1900, became twenty-one years of age on February 4, 1921. In my opinion, prescription does not begin to run until the first moment of the twenty-second year, which in tliis case Avould be the first moment of February 5, 1921. Seven years from February 5, 1921, was completed at the end of February 4, 1928. The suit in this case was brought on February 4, 1928, and was brought in time. The judgment, if justified, is justified on other grounds, to wit, that the title to the property for which the suit was brought has found its way into persons who are innocent purchasers and can not be affected by the fraud of predecessors.