125 Ga. 415 | Ga. | 1906
(After stating the facts.) Before undertaking to deal specifically with the questions presented by the motion for a new trial, it is pertinent to observe that the sale conducted by the administrators of J. Randolph Battle, whereby the lands belonging to his estate were disposed of to his widow as the highest and best ■bidder, has never been judicially declared inoperative as between the parties to this litigation, or their privies, or ever been formally set aside. As early as the March term, 1888, of Schley superior court, the sureties on the bond of the administrators elected to abandon their efforts to have the sale declared void, and consented to a decree ■confirming it. The plaintiffs in the present case were not bound by that decree, and by prosecuting their action of ejectment against the purchaser at the sale they evinced an intention to ignore it and treat the sale as inoperative against them as heirs at law. Neither the administrators nor their sureties were parties to this litigation, and, as between them and the plaintiffs, the result of the action in mo way affected the validity of the sale. The plaintiffs recovered
The plaintiffs are' bound by their election to claim the proceeds realized from a sale of the lands of the Battle estate, rather than to repudiate the administrators’ sale and have the lands resold. Battle v. Wright, 116 Ga. 218. This being true, it is clear that the sureties were liable under the bond for any failure of the administrators to properly account for such proceeds and other assets of the estate coming into their hands for administration. While the judgment against the administrators in favor of' the heirs at law is not conclusive upon the sureties as to whether or not a devastavit has been committed (Gibson v. Robinson, 90 Ga. 756), yet the defendant does not pretend that upon the accounting had with'the administrators they were not given credit for the full amount of their expenditures or were charged with any item for which they were not liable. On the contrary, he merely sets up the equitable plea of subrogation and asks that there be taken into account the claims of creditors which were settled by the sureties on the bond but were never paid, as they should have been, out of the assets of the estate. The question is: were these sureties, relatively to the heirs at law, subrogated to the rights of these creditors, to the extent of the amount expended in order to discharge their just demands against the estate? The administrators ought to have paid the creditors
The defendant introduced as a witness W. M. McG-arrah, one of
Judgment reversed.