Sellars v. Cheney , 70 Ga. 790 ( 1883 )

Jackson, Chief Justice.

The questions made in this record and pressed here mainly by the plaintiff in error are, first, that possession in defendant in the ejectment case was not proved; secondly, that the administrator could not sue unless he brought himself within section 2486 of the Code, and showed either prior possession, or that the recovery was necessary to pay debts or make proper distribution; thirdly, estoppel; and fourthly, the evidence necessary to prove and identify a summons to a justice court so a's to admit it in the evidence.

1. When the defendant put in his defence to the action, the law and rule of court required him to admit possession.

2. Section 2486 of the Code, applies to suit by the administrator against heirs or those holding under heirs. Sellars, the defendant here, was neither an heir nor did he hold under one.

3. The estoppel is not good under the facts. It is based on the idea that the former administratrix stood by and saw the sale under the void fi.fa., and thereby the administrator de bonis non is estopped from attacking its invalidity. Even if an administrator sells illegally as an individual he is not estopped as administrator; certainly then he will not be, if the preceding administratrix sees the sheriff sell illegally and says nothing. 57 Ga., 425; Section 2966 of Code, and 59 Ga., 171, are not applicable.

4. The constable who served the summons, and the justice of the peace who succeeded him who issued it in that office, may prove and identify it, and the justice of the peace who issued it need not be called. The constable who served it certainly knew as much about it as the justice who issued it for service. -

5. The justice court was illegally 'held, under the constitution of 1868, and the judgment and fi.fa. and sale were void; the court being held not in the time prescribed by la,w, was no court. 56 Ga., 283; 59 Ib., 533, 603; 60 Ib., 631, 466; 65 Ib., 557.

6. Where plaintiff and defendant both hold under a common grantor, the title in him need not be proved. 54 Ga., 689; 55 Ib., 613.

7. The verdict is right.

Judgment affirmed.