Hansen v. Leath , 25 Ga. App. 522 ( 1920 )

Stephens, J.

(After stating the foregoing facts.) Upon the death of an intestate the lands descend to the heirs at law, but 'are incumbered with any right of possession previously given by the intestate to a tenant. The heirs, while having the legal title, cannot -enter and take possession during the term of the tenancy. Where, however, there is no tenancy, and the right of possession and use is undisposed of, the heirs have a right to immediate possession of the lands, subject to the dower rights of the widow, if there be any, and to the right of the administrator to administer the estate according to law. It follows, therefore, that should any tenancy or right of use or possession created by the intestate expire after his death, the heirs at law would have the right of possession, and the administrator, acting as such, would have no right to create a new contract of tenancy or otherwise dispose of the right of use or possession, unless perhaps this would be necessary for the purpose of administering the estate. Whether or not the administrator has the right to make a contract of rental and dispose of the use and possession of the land of the estate without the consent of the heirs at law, he cannot create any incumbrance upon the land which would not be divested by a due and legally conducted administrator’s sale. Since, in the case under consideration, it appears that the contract of rental in existence at the time the purchaser acquired title under the administrator’s sale was not with the intestate, but was a contract of tenancy with the administrator, either by express agreement between the administrator and the tenant to pay an advance rent, or by an implied renewal of a yearly contract which the tenant had with the intestate, who had been dead for four years prior to the administrator’s sale, it was not an incumbrance attached to the premises after title had passed under the administrator’s sale duly made for the purpose of distribution and paying the debts of the estate of the intestate, and, therefore, the purchaser at that sale had a right to dispossess the tenant in possession under the contract of tenancy. The tenant having been given a certain number of days in which to vacate, the purchaser had a right to dispossess him upon his failure to vacate after the expiration of the time allowed. It was therefore error to grant a nonsuit. See, in this connection, Autrey v. Autrey, 94 Ga. 579 (20 S. E. 431); Myers v. Pierce, 86 Ga. 786 (12 S. E. 978); McDaniel v. Edwards, 56 Ga. 444; 11 Am. & Enc. Law, 1057, 1136. Estate of Merkel, 131 Pa. St. 584.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.