Robinson v. Smith , 159 Ga. 269 ( 1924 )

Hines, J.

(After stating the foregoing facts.)

Was the administrator’s sale void because of lack of a proper and valid order authorizing it? It is insisted that, as the order was granted before the assignment of dower, it did not authorize the sale of the reversionary interest in the land in which dower was afterwards assigned to the widow; and that, to enable the administrator to sell such interest, there must have been an order giving him specific power to sell it. We can not agree to this view. The order granted by the court of ordinary expressly adjudged that it was necessary to sell the land in which the dower was afterwards assigned, for the payment of debts and for distribution. The subsequent assignment of the dower did not destroy this necessity. It would render it more imperative. In Chancey v. Henry, 89 Ga. 123 (14 S. E. 885), it was held that an administrator, having the usual leave from the ordinary, had power to sell land belonging to the estate of his intestate, subject to the widow’s right of dower; and that, if the sale was fair and free from fraud, the purchaser acquired good title as against the heirs, whether the dower was afterwards duly assigned to her. or not. Clearly under this ruling the administrator, having the usual leave from the ordinary, had the power, after dower had been assigned in these lands, to sell the same, subject to such dower. In Adams v. Adams, 113 Ga. 824 (39 S. E. 291), it was held that where an order for the sale of a reversion in realty, after the expiration of a widow’s dower, had been granted, and before the sale took place the widow died, the order constituted authority to sell the fee. By parity of reasoning, an order to sell the fee would authorize the sale of the reversion in lands in which the widow’s dower was afterwards granted. The administrator, under an order of the court of ordinary authorizing him to sell the real estate of his intestate, can sell a less estate than that described in the order of sale. Kingsbery v. Love, 95 Ga. 543 (22 S. E. 617). So we do not think that this sale of the reversion in these lands was void because the order authorizing the sale of the lands in fee was granted before dower was assigned.

But was the sale void, if, at the time the authority to sell, given by this order, was exercised by the administrator, there was no necessity to sell the reversionary interest in the dower lands to pay the debts of the deceased? We construe the petition to be one attacking the exercise of this power on the ground that there was no necessity to sell to pay debts, when the sale was made, and seeking to set aside the administrator’s sale and deed so far as the dower lands are concerned, and not an equitable petition seeking to have set aside the judgment on the ground that it was obtained by the fraudulent representation of the administrator that it was necessary to sell the reversionary interest in the dower lands to pay debts of the estate. In other words, the plaintiffs treat the exercise of the power, by the administrator as fraudulent, because such necessity did not exist at the time of the sale, and they seek to have the sale and the administrator’s deed as to these lands set aside. -They do not pray to have the order of the court of ordinary set aside. The Civil Code (1910), § 4094, declares that “No administrator shall be authorized to sell the reversionary interest in the land set apart as dower during the lifetime of the widow, except it be necessary to pay debts.” Under leave granted by the court of ordinary to an administrator to sell lands of his intestate, before dower is assigned to the widow, the administrator, under this section, would not be authorized to sell the reversionary interest in lands thereafter set apart as dower during the lifetime of the widow, “except it be necessary to pay debts.” To sell under such an order the reversionary interest in dower lands, when no necessity to pay debts existed, would violate the above provision of the Code. To sell under such circumstances the administrator would exceed his power of attorney. Such a sale would be fraudulent. A court of equity would set it aside as to a purchaser with notice of the lack of necessity to sell to pay debts. So where at such sale the administrator, as an heir at law of his intestate, and other heirs at law of the intestate, became purchasers through another of such lands, they would be presumed to have knowledge of the fact of the want of such necessity; and the sale as to the ■administrator would be voidable, and as to the other purchasing heirs would be prima facie voidable. Sutton v. Ford, 144 Ga. 587 (87 S. E. 799, L. R. A. 1918D, 561, Ann. Cas. 1918A, 106).

The order of the court of ordinary granting leave to the administrator to sell these lands of his- intestate to pay debts is the judgment of a court of competent and general jurisdiction. It legally imports the necessity of their sale for such purpose. Such judgment, apparently regular, can not be collaterally attacked. It contained the authority, as held above, for the sale of these lands. If the purchasers had been innocent ones, such sale would have divested the title of the other heirs, although there was no necessity to sell the lands to pay debts. King v. Cabaniss, 81 Ga. 661 (3) (7 S. E. 620); Merritt v. Jones, 136 Ga. 618 (71 S. E. 1092); Copelan v. Kimbrough, 149 Ga. 683 (102 S. E. 162); Isom v. Nutting, 153 Ga. 682, 687 (113 S. E. 197). Conceding that the heirs who purchased these lands at the administrator’s sale were not innocent purchasers, the Moore Lumber Company, which purchased from them the' timber thereon, was, under the facts appearing in the record, an innocent purchaser of such timber, and will be protected in its title thereto, although the sale to such heirs by tire administrator was voidable.

It appears that the share of the proceeds of the reversionary interest in these dower lands coming to plaintiffs as heirs at law of the intestate was paid to their guardian. Presumptively they received the same, and there is nothing in the record to rebut this presumption. This being so, they can not keep their share of the proceeds of the sale of these lands and at the same time recover them from the purchasers .at the administrator’s sale, although such sale was voidable because at the time it took place there was’ no necessity for the administrator to sell to pay debts of the estate. Warner v. Hill, 153 Ga. 510 (112 S. E. 478).

While ordinarily a purchase by an administrator at his own sale, either directly or indirectly, of the land of his intestate is voidable at the election of the heirs,' such is not the case where the administrator is an heir at law of - his intestate an'd his purchase is free from fraud. Arnold v. Arnold, 154 Ga. 195 (113 S. E. 798); Thompson v. Thompson, 157 Ga. 377 (121 S. E. 225). So in this case the purchase by the administrator and other heirs of the intestate of the dower land at the administrator’s sale would not be void for this fact alone, in the absence of any fraud on their part in becoming such purchasers. However, it would be a fraud for these heirs to have bought the dower land with knowledge that there was no necessity for its sale to pay debts of the estate.

It is insisted by counsel for the defendants in the court below that the plaintiffs’ action was barred by their laches and by the statute of limitations. In this State there is no statute of limitations barring the recovery, of real estate. An equitable action, brought to set aside an administrator’s sale and to cancel his deed on the ground that a fraud was perpetrated upon the heirs in making such sale, where the effect of the decree would be to restore possession of the land -to the complainants, has been analogized to the rule of law permitting title by adverse possession to be acquired in seven years under color of title; and a suit brought in that time, where there are no special reasons calling for the interposition of an equitable bar, is not.barred. Cade v. Burton, 35 Ga. 280; Knox v. Yow, 91 Ga. 367 (5) (17 S. E. 654); Beasley v. Smith, 144 Ga. 377, 381 (87 S. E. 293); Wallace v. Mize, 153 Ga. 374, 383 (112 S. E. 724). The facts in the record do not disclose any special reasons calling for the interposition of an equitable bar. The administrator’s sale in this case took place on the first Tuesday in November, 1904. The present suit was instituted on April 10, 1924. It appears that this suit was not filed within seven years after two of the plaintiffs, and probably three of them, had reached their majority. It appears that one of the plaintiffs was only 26 years old when this suit was begun, and as to him seven years had not run after he became of age. "We think the trial judge, under the facts disclosed in the record, was authorized to find that two, and probably three, of the plaintiffs were barred by the statute of limitations applicable in this case, and that certainly one of them was not so barred.

Applying the above principles, the trial judge was authorized to find that the Moore Lumber Company was a boña fide purchaser for value of the timber on- these dower lands; and for this and the other reasons hereinbefore set out his judgment, denying to the plaintiffs an injunction to restrain this defendant from cutting and removing the timber, was proper, and should be affirmed.

Judgment affirmed.

All the'Justices concur.