Hull v. Watkins , 134 Ga. 779 ( 1910 )

Lumpkin, J.

I concur in the judgment of reversal. But I think that attention should be called to the two cases of Hall v. Armor, 68 Ga. 449, and Head v. Driver, 79 Ga. 179 (3 S. E. 621). The decision in the former ease has never been reviewed. Whether it is in accord with § 4631 of the Civil Code or not, that case 'arose under a claim interposed after an order of sale had been granted, and it appeared that, the persons in possession held, not as heirs of the intestate, but as purchasers claiming under a convej'ance. In the second case above cited, it was held, that, “Prior to the code, it was not absolutely settled whether- an administrator could recover in ejectment against an heir at law without first obtaining an order for sale from the ordinary. Under the code, it is the better practice, if it is not indispensable, to obtain such order.55 See also Luttrell v. Whitehead, 121 Ga. 703 (49 S. E. 691), where it was said that the order was necessary. The difference between the eases first cited is apparent. In the case at bar the administrator is applying for an' order to sell. If he should, either as better practice or as matter of necessity, obtain an order for sale before recovering possession from the heirs, and if he can not obtain an order for sale if the heirs are in possession, he is between the horns of a legal dilemma. The law does not place him in such a position. He is entitled to the order of sale, under the evidence in the record.