Head v. Driver , 79 Ga. 179 ( 1887 )

Bleckley, Chief Justice.

This action is one of ejectment proper. Several demises are laid in the declaration, but they are all from Goodrich Driver. The plaintiff proved that Goodrich Driver was in possession of the land at and before his death; that on his death,his children (the defendants in the action) took possession and remained in possession ; that he died in July, 1SS5; and- that there were no debts of his estate, then or afterwards. Upon this evidence, there was a motion to nonsuit, and the court announced a purpose to grant it. The plaintiff thereupon offered to amend the declaration by alleging that the defendants had taken possession forcibly from the widow of Goodrich Driver, refused her the joint use of the land, and denied to her any right or title therein; and that it was necessary to recover for distribution among the heirs. This amendment was denied by the court, and the nonsuit was awarded.

1. It will be observed that there was no party plaintiff except the nominal plaintiff and Goodrich Driver, the alleged lessor, a man who was dead at the time the action was brought. For that reason the nonsuit was properly awarded. There can be no recovery in ejectment where the sole lessor of the plaintiff was dead when the suit was brought, 24 Ga. 494; 29 Id. 45 ; 19 Id. 280 ; 20 Id. 135.

2. Prior to the code, it was not absolutely settled whether or not an administrator could recover in ejectment against an heir at law, without first obtaining an order of sale from the court of ordinary. 3 Ga. 111; 14 Id. 145 ; 20 Id. 141. Under the code, it is the better practice, if not indispensable in most cases, to obtain such order. Code, §2486, 56 Ga. 433, 434. Here, however, the alleged demises were not from the administrator of the deceased owner, but from the deceased himself. The proposed amendment could not have aided the action or prevented the nonsuit.

j udgment affirmed.