Doe ex dem. Clements v. Roe , 4 Ga. 148 ( 1848 )

By the Court.

Warner, J.

delivering the opinion.

[1.] On the trial of this cause, it was objected, that the order to-sell all the real estate of the-decedent, was not sufficient authority to the administrators to sell the particular Ibis of land described' in the deed. Perhaps it would have been more regular, and the better practice undoubtedly is, to have the lands described by number and district, in the order of the Court of Ordinary granting leave to sell, so that it may distinctly appear, what lands of the intestate the administrator has leave of the Court to sell, for the payment of debts. The order here, however, was to sell all the real estate of the intestate, which necessarily includes all the lands of which he was seized, at the time of'his death, embracing the premises in controversy; therefore, this exception was properly overruled by the court below.

The other objections to the deed being read in evidence, and the exceptions to the charge of the Court being substantially the. same, will be considered together.

In this State, on the death of the ancestor intestate, his lands-descend to his heirs at law, the title to which, is subject to be divested for the payment of debts, in the manner prescribed by the General Assembly.

On the death of John Clements, the intestate, the title to his lands was cast upon his heh-s, one of whom is now the lessor of the plaintiff. The title of the heir is sought to be divested' by an administrator’s sale of the premises in dispute.

The Act of 1816 provides, that on the application of the administrator, it shall be lawful for the - Inferior Courts in the several counties in this State, when sitting for Ordinary purposes, to order a sale of a part or the whole-of the real estate of the intestate, where it is mad % fully, and plainly appear, that the same wilt he for the benefit of the heirs and creditors of such estate. The Act requires that a notice of such application for sale, shall he first made in one of the public gazettes of this State, at least four months before any order absolute shall be made thereupon. And. further directs, that the sale shall be at public auction, Cn the first Tuesday of the month, between the usual hours of sale, at the place of public sales in the county where such real estate majf lay; first giving sixty days’ notice thereof, in one of the public gazettes of this State, and at the door of the court-house, in the county where such sales are to be had. Prince’s Dig. 248. By virtue of this Statute, the administrator is clothed with "a naked power to sell the real estate of his intestate, and whenever it is maAe fully, wA plainly to appear to the Court of Ordinary, that such sale will be for the benefit of the heirs and creditors of such estate. In the execution of this power, conferred upon the administrator, the legislature have thought proper to impose cer* tain conditions and restrictions. First, the administrator must obtain the order of the Court of Ordinary, granting him license to make the sale, which order must be preceded by a four months’ notice, in one of the gazettes of this State, of his intended application for such order. Second, the sale must be made .at public auction, on the first Tuesday in the month, between the usual hours of sale. Third, the land must be sold at the place of pub* lie sales, in the county where the same lies. Fourth, the administrator is required to give sixty days notice of the time and place of such sale, in one of the gazettes of this State, and at the door of the court house in the county where such sale is to he had. The title of the heirs to the lands of their ancestor, cannot be divested by a sale, made by the administrator, until in the judgment of the Court of Ordinary, there is a manifest necessity for such sale, or that such sale will be “ fully and plainly for the benefit of the heirs and creditors.”

"Whenever, in the judgment of the Court of Ordinary, it fully and plainly appears, to be for the benefit of the heirs and creditors of the intestate’s estate, that the real estate of the decedent should be sold, then and not otherwise, is .the administrator empowered to make sale thereof, and divest the heirs of their title.

[2.] It is a general rule, that whenever a title to ¡property is sought to be divested, by the authority of -the law, all the requisites, which the law prescribes to effect that object, must be complied with. The agent of the law, when he seeks to divest one of his property, and pass the title thereto to another, must show he has ample authority to make such transfer. And he must not only show his authority for so doing, but he must execute his authority, in the manner prescribed by the law which confers the authority upon him. It was urged on the argument by the counsel for the plaintiff in error, that in the case of a naked power, not coupled with an interest, the law requires that every prerequisite to the exercise of that power, should precede it. This, as a general proposition, is undoubtedly true, and although the courts cannot dispense with th & form prescribed, in the execution of a power, yet they may be allowed to put a liberal construction on the1 words of the power. Sugden on Powers, 214.

An administrator in this State, as we have seen, derives his power and authority to convey the real estate of his intestate, from the statute. Does the record before us disclose that the requisitions of the statute were complied with by the administrator, in making sale of his intestate’s real estate %

The authority to make the sale is shown, and we presume the' Court of Ordinary required all the law requires to have been done, before granting the order to sell, and we shall not go behind-that judgment.

[3.] The administrator’s deed recites that the land was sold at public outcry, at the court house, in the town of Hamilton, Harris-county, on the first Tuesday in October, 1837. The deed does not recite, that the sale was admertised as required by the statute, or that the land was sold, between the lawful hours of sale, nor was there any evidence as to either of these facts. The Court below ruled, that the order for the sale of the land by the Court of Ordinary, was all that was necessary to be proved, to support the administrator’s deed. According to .the principles of the law before adverted to, we are of the opinion, the title of the heirs to the estate of their ancestor, cannot be divested by an administrator’s Sale, until the requisitions of the statute, empowering him to make such sale, have been complied with. There must be at least ¡prima facie evidence before the Court, that such requisitions have been performed. "We do not hold the production of the gazette, in which the advertisement was had, nor the production of the advertisement at the court house door, indispensably necessary; the recital in the deed of the requisitions imposed by the statute, would be prima facie evidence of the facts so recited. An administrator is an officer of the law, acting under the obligations of his oath of office. The law presumes, that every man in his private and official character, does his duty, and obeys the mandates of the law, until the contrary is proved. 1 Greenl. Ev. 89. Bank U. S. vs. Dandridge, 12 Wheat. Rep. 64.

In Hartwell vs. Root, 19 John. Rep. 347, the general rule is stated to be, that when a person is required to do a certain act, the omission of which would make him guilty of a culpable neglect of duty, it ought to be intended that he has duly performed it, unless the contrary can be shown.

It being a duty imposed on the administrator by law, to advertise the land sixty days previous to the sale, and to sell it between the lawful hours of sale, on the first Tuesday in the month, the law will presume that he has done so when recited in the deed of conveyance, until the contrary is shown. But it may be asked, if the law presumes the administrator has done his duty, why not presume he has done so without the particular acts being recited in the deed 1 The deed is the muniment of title delivered to the purchaser by the administrator, as the agent of the law, and should show upon its face that the requisitions of the law have been complied with, which would divest the heirs of their title, and transfer the same to the purchaser. The statute authorizes the administrator to make the sale, on certain terms and conditions, and, as the agent of the law, he ought to state on the face of his conveyance that the terms and conditions required by the law have been performed — to show on the face of his conveyance, that he conveys as administrator, and that he is acting under the authority of, and in obedience to, the law, from which he derives all his power to make it. We think too, that the presumption is strengthened by a written recital of the administrator in his official capacity, when making the deed. It is his official declaration, in writing, that the requisitions of the law have been complied with. In this case, the administrators have recited a part of the acts enjoined by the law to be done, in their deed; but it is silent as to the others. What is the legal presumption? We must presume that they stated the truth as far as they pretended to state, and that they omitted to state the land had been advertised and sold between the lawful hours of sale, because the facts wouldnot authorize them so to state. Our conclusion, then, is, that where a party derives his title to land under an administrator’s sale, he must show the order of the Court of Ordinary granting the administrator a license to sell, and when it is shown he had the authority of the Court of Ordinary to make sale of the land, it must be further shown to the Court, that the administrator, in making such sale, pursued the directions of the statute, before the title of the heirs of the ancestor will be divested. That the recital in the deed of conveyance made by the administrator to the purchaser, of the acts required to be done by the statute, in making the sale by the administrator, will be considered as prima facie evidence of their’ having been done, as therein recited, until the contrary is shown. There being no evidence before the Court below, either in the administrator’s deed, or otherwise, showing the land had been advertised and was sold between the lawful hours of sale, the judgment of the Court below must be reversed, and a new trial granted.