Logan v. Gigley , 9 Ga. 114 ( 1850 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] We fully subscribe to the doctrine, as ruled by the Supreme Court of New York, in The Overseers of Bridgewater vs. The Overseers of Brookfield, (3 Cow. 299,) and in Herreck vs. Grow & Brown, (5 Wend. 579,) namely: that a bond by an administrator, to convey real estate of his intestate, in contemplation of a sale under the Ordinary’s order, is utterly void and incapable of being enforced, either at Law or in Equity, and that it is against the policy of the law to permit the authority, conferred by the Ordinary, to be influenced or controlled by any previous contract.

In the latter case, it was well remarked by Ch. J. Savage, that by Statute, administrators must sell at auction, and they can sell in no other manner. The highest bidder must have the property, and to him the administrators must convey. If the bidder at public auction, therefore, offer more than the administrators have agreed to sell for, they must forfeit and pay the difference out of their own pockets, according to their contract. They have every inducement, therefore, to discourage bidding, whereas, their duty requires them to sell at the highest price. Such a contract, consequently, is highly improper, and a violation of the duty of the trustee.

But, non constat, that Myers’ and Logan’s bond was given to Aaron S. Gigley, to sell and convey the real estate of Charles T. England, deceased, the intestate of Myers. It does not so purport on the face of it. It is an obligation of Myers, as administrator of England, to make, or cause to be made, good and sufficient warrantee titles to lot No. 6, in square 36, according to the plan of the city of Macon, as soon as the same could be done according to law. Still, I repeat, this lot is not alleged, in the bond, to be the property of England’s estate. It may not be so, and, in that event, the bond would be a mere personal undertaking on the part of Myers, and the addition of administrator to his name, be considered mere surplusage.

There being no other evidence then before the Court, but the instrument itself, and the testimony of Col. Hardeman, demanding titles, instead of moving for a non-suit, the defendant’s counsel should have gone on to the Jury, and supported his plea by evidence, and then asked the instructions of the Court to the Jury, that the bond was contrary to the policy of the law, and consequently void. Upon the plea, the case is with the defendant in the Court below-^-upon the proof, with the plaintiff.

The judgment must, therefore, be affirmed.