144 Ga. 508 | Ga. | 1916
We think the judge erred in allowing the amendment to the petition, and that a reversal of the judgment is required, and that other assignments of error relate to matters which will not likely occur on another trial. We will therefore discuss only the question as to the allowance of the amendment. It is declared in the Civil Code, § 4033, which has the force of a statute, that “An administrator can not sell property held adversely to the estate by a third person; he must first recover possession.” In Lowe v. Bivins, 112 Ga. 341 (37. S. E. 374), applying this provision of the code, it was held: “In an action for the recovery of land, where it was necessary for the plaintiff to rely upon a deed to such land made in pursuance of an administrator’s sale of the same, and it clearly appeared from the evidence that, at the time of such sale, a considerable portion of the land was held adversely to the estáte of the intestate by a third person, a verdict in favor of the plaintiff for the premises in dispute was contrary to the evidence and to law.” A similar ruling was made in the case of Hall v. Armor, 68 Ga. 449. The same doctrine was recognized in Hanesley v. Bagley, 109 Ga. 346 (34 S. E. 584), where it wás said by Cobb, J.: “Moreover, his ease would fall for the reason that, at the time of the administrator’s sale, under which he holds, the administrator was not only not in the possession of the land, but the same was in the possession of another holding adversely to such administrator; and for this reason, if for no other, Clay acquired no interest under the deed.” The doctrine was likewise applied in Downing Lumber Co. v. Medlin, 136 Ga. 665, 668 (72 S. E. 22), wherein Holden, J., said: “The main reason that such sales are made void is that property, though actually belonging to the estate, would not likely bring its full value when held adversely to the estate, and the administrator could not give possession. . . It makes no difference whether the land be designated as wild land, or by some other description; the fact that it is held adversely to the estate makes the sale of it by the administrator of the estate void.” From the foregoing, it may be said that a purchaser of land at administrator’s sale, while the land is held in adverse possession to the estate which the administrator represents, derives no interest or title to the land by virtue of his purchase and the deed given in pursuance of the sale. The doctrine of caveat emptor applies to administrators’ sales (Mercer v. Sager, 129 Ga. 123, 58 S. E.
The judge erred in allowing the petition to be amended, and in
Judgment reversed.