Brown v. Glover , 156 Ga. 640 ( 1923 )

Hines, J.

(After stating the foregoing facts.)

1. There was evidence before the jury which would have authorized them to find that Henry Mack Price was the son of the plaintiff’s intestate; that, although he was the son of a slave and although his birth occurred before March 9, 1866, hé was born within what was recognized as a state of wedlock; that in consequence he was the legitimate son of his father, and that he was sole heir at law of his father, to whom, on the death of the father, these lands descended. The ■ evidence discloses that the father and this son lived on these lands until the father’s death, and that the son continued to live thereon after his father’s death. Both parties claim title under Jack Price, and the only question for determination is who has the better title.” The administrator may recover possession of lands of his intestate from the heirs at law or purchasers from them; but in order to recover he must show upon the trial that either the property sued for has been in his possession and without his consent is held by the defendant, or that it is necessary for him to have possession for the purpose of paying the debts of his intestate, or making a proper distribution among the heirs'at law. An order for sale or distribution granted by the ordinary, after notice to the defendant, is conclusive evidence of either fact. Civil Code (1910), § 3934. If Henry Mack Price was the son and heir at law of the intestate, the title of the latter vested in him at the death of his ancestor; and the administrator could not recover by simply showing that the title to the land was in the intestate when he died. Holl v. Anderson, 98 Ga. 220 (25 S. E. 496); Green v. Underwood, 108 Ga. 354 (33 S. E. 1009). But the defendant admitted that an order had been passed by the proper court of ordinary, authorizing the administrator to sell these lands. This order was prima facie evidence of the fact that a sale of these lands at the time the order was granted was necessary for the purpose of paying the debts of the estate, although there was no evidence of personal notice to the defendant. Davis v. Howard, 56 Ga. 430; Dixon v. Rogers, 110 Ga. 509 (35 S. E. 781); Stuckey v. Watkins, 112 Ga. 268 (37 S. E. 401, 81 Am. St. R. 47); Park v. Mullins, 124 Ga. 1072 (53 S. E. 568); Cochran v. Bugg, 131 Ga. 588 (62 S. E. 1048). If the heir had personal notice of the application for the order, it would be conclusive against him; but the heir or his vendee may attack such order by showing that no personal notice of the application for such order had been served upon the heir, notwithstanding the fact that the order was passed after the usual citation had been published according to law. Park v. Mullins, supra. In the absence of such showing, the heir or his vendee will be concluded by the order of sale when the same is proved or its existence is admitted by the heir or his vendee. So if the present action, as finally amended, was one brought by the administrator to recover these lands for the purpose of selling them and for the benefit of the estate, he'would be entitled to recover upon proof of the grant of an order by the court of ordinary authorizing him to sell these lands, and upon the admission of his adversary that his intestate owned them at the time of his death. ■

2. While the original action was one by the administrator to recover these lands as the property of his intestate, by an amendment he alleged that the intervenors claimed to be the owners of the premises in dispute, and that he desired that the respective rights of the parties thereto be determined by the court for his protection as administrator of the estate of his intestate, and that he might be legally discharged and relieved as such administrator. He prayed that the intervenors be permitted to interplead and set up any right they might have to said property, in order that the court might pass upon the respective claims to said property, and mold its judgment in accordance with the facts and .legal rights of the respective claimants. This amendment changed the character of the original suit, and converted it into an action to settle the title of the contending claimants. The intervenors introduced no evidence tending to establish the facts set up in their intervention. The court directed a verdict in favor of the plaintiffs. Upon the rendition thereof, a judgment was entered that the intervenors recover from the defendant the premises in dispute. In the absence of any evidence establishing the title in the inter - venors to the premises, the court erred in directing this verdict.

Judgment reversed.

All the Justices concur.