Mallard v. Curran , 123 Ga. 872 ( 1905 )

Candler, J.

(After stating the foregoing facts.) While no express ruling was made by the trial judge on the separate grounds of demurrer, it follows from the fact that the petition was dismissed at the plaintiff’s cost that the general demurrer was sustained, and we turn our attention first to the question whether the petition set out a cause of action.

1. There can be no doubt that where there is in the vendor power to make a sale of real estate at auction, a contract of purchase and sale is completed upon the fall of the auctioneer’s hammer and the acceptance of the bid. Either party to the contract may then enforce performance by the other, or sue for damages on account of non-performance. 3 Am. & Eng. Enc. L. (2d ed.) 501; Tillman v. Dunman, 114 Ga. 409. Of course the court will not require an administrator to do an unlawful or unauthorized act; so the issue narrows down to the single question whether or not the administrator had power and authority, under the allegations of the petition, to advertise and sell at public outcry the fee-simple title in the property of his decedent. It goes without saying that a man can not sell that which he does not own; and. as the administrator in the present case did not own the fee to the property but had only an equity of redemption therein, it might seem at first blush that he was without authority to convey anything more than that equity. It is to be borne in mind, however, that the insurance company, by its trustees, together with the administrator, did own the entire interest; and we know of no legal reason why the united action of all the parties concerned might not operate to convey the fee-simple title. The insurance company is not a party to this demurrer, and has not been heard so far to object to the consummation of the sale upon which the plaintiff insists. According to the petition, full power was given by it to the administrator to sell its entire interest in the land. Certainly, there can be no objection to its taking this method of obtaining payment of its debt in preference to the institution of foreclosure proceedings. This agreement by it was not kept secret from the public, thus injuring the chances of bidding by those who did not desire to purchase property with an incumbrance; but it was made known, by public announcement at the time of the auction, that the purchaser would get a fee-simple title clear of all incumbrances. This, then, was tantamount to authority granted by it to the administrator to sell its interest in the property along with his own. A case closely in point is that of Thompson v. Atwater, 84 Ga. 270, where it was held: “Where a vendor sells land, and the vendee pays a part of the purchase-money and then dies, the only interest which his administrator can sell is that which the vendee had in the land as represented by the amount of purchase-money he paid. Nor can the administrator and vendor, when the land is exposed for public sale, privately agree that it shall be sold and the proceeds applied first to the payment of balance of purchase-money, and that the interest of the vendor shall be sold provided he receives that balance. The vendor may consent for the whole interest in the land to be sold, but notice of this consent must be publicly given at the sale, that the property may bring its full value.” It will be seen that the allegations of the petition in the present case measure fully up to the rule laid down in the last sentence quoted above. There is no suggestion in the record that the property did not bring its full value on the sale, or that the estate was thereby injured. We are forced to the conclusion that'the court erred in dismissing the petition on general demurrer.

2. We are clear, however, that the allegations of damages, and the prayer for the recovery of $750, should be stricken. Aside from the fact that the administrator could not be held liable in both his individual and his representative capacity, and the further fact that the estate should not be mulcted in damages for the alleged misdeeds of the administrator, there were no such allegations of bad faith, stubborn litigiousness, and wanton disregard of-the rights of the plaintiff as would support a recovery for the expenses of the litigation. See, on this subject, Pferdmenges v. Butler, 117 Ga. 400. The other grounds of the special demurrer, however, are without merit. The allegations of tender and the other circumstances of the transaction were sufficiently explicit. The petition was not bad for misjoinder, nor was it multifarious.

Judgment reversed.

All the Justices concur, except Simmons, C. J., absent, ancl Lumpkin, J., disqualified.