Babson v. McEachin , 147 Ga. 143 ( 1917 )

Eish, C. J.

1. A temporary administrator may be appointed for the purpose of collecting and taking care of the effects of the deceased, his appointment to continue and have effect until permanent letters are granted. Civil Code, § 3935. He takes no interest in land of the'estate, and can not bring an action for its recovery or consent to .such an action being brought. Doris v. Story, 122 Ga. 611 (50 S. E. 348). Owing to the limited powers of a temporary administrator, an 'estate of a decedent can not be affected by a suit instituted against the temporary administrator by a grantor of land, to cancel a deed executed by him to the decedent while in life. See Lester v. Mathews, 56 Ga. 656.

2. An equitable action for cancellation of deeds as clouds upon title, and to enjoin the exercise of a power of sale contained in one of thém, can be instituted only in the county of the residence of one .of the defendants against whom substantial relief is prayed. Civil Code,- § 5528, Bird v. Trapnell, ante, 50 (92 S. E. 872).

3. Advertising and preparing for a sale of land in pursuance of a power conferred in a security deed do not constitute such a pending proceeding, within the meaning of the Civil Code, § 5527, as will, without more, authorize the judge of the superior court of the county wherein the land is located, and the sale is to be had, to enjoin the sale which is being advertised by the transferee of the security deed, where he does not reside in that county. Meeks v. Roan, 117 Ga. 865 (45 S. E. 252) ; Saffold v. Scottish American Mortgage Co., 98 Ga. 785 (27 S. E. 208).

(k) If the power of sale were void, and the transferee, being a non-resident of the State, was having the property advertised for sale under the power by an agent who resided in this State but in a county other than that in which it was being sought to have the sale, the act of the agent would be wrongful, and upon a different principle the suit to enjoin the sale might be instituted in the county of the residence of the agent. Saffold v. Scottish American Mortgage Co., supra; Sellers v. Page, 127 Ga. 633 (56 S. E. 1011).

4. Applying to the facts of the present case the rulings above announced, it sufficiently appears that the court was without jurisdiction, and if was error to overrule the demurrer raising that question.

5. Having ruled that the court was without jurisdiction to entertain the case, it becomes unnecessary to state or deal with other questions presented in the record, either by the direct or cross-bill-of exceptions.-

Judgment reversed on the main hill of exceptions; cross-hill dismissed.

All the Justices concur. W. W. Bennett, J. C. Bennett, and O: H. Parker, for Babson et a!. O. B. Conyers and John Rogers Jr., contra.