Field v. Manly

' Jenkins, Justice.

1. Where an administrator filed a petition against the grantee in a security deed from the administrator, to enjoin a sale of the real estate described in the deed and to cancel the deed as a cloud on the title, and where pending the litigation the defendant grantee sold the property to persons including a brother of the trial judge, and the brother joined in a deed to a third person, containing no general warranty but merely a special warranty “against all persons claiming through him,” the brother had no such interest in the litigation as would disqualify the judge. Code, § 24-102; Elliott v. Hipp, 134 Ga. 844 (68 S. E. 736, 137 Am. St. R. 272, 20 Ann. Cas. 423); Johnson v. Marietta & North Ga. R., 70 Ga. 712; Patterson v. Collier, 75 Ga. 419 (54 Am. R. 472).

Nos. 12115, 12126. January 12, 1938. Rehearing denied February 18, 1938. W. E. Mourn and W. G. Mann, for plaintiff. Hardin & McOamy, for defendant.

2. An administrator, by virtue of his appointment as such, has no legal right to borrow money and bind the estate by a note and mortgage given therefor, although the money was borrowed for the benefit of the estate. Nor will the fact that the proceeds of the loan were used for the benefit of the estate to pay debts operate to give the lender an equitable lien on the mortgaged property or other assets of the estate. Carter v. Davis, 174 Ga. 824 (3), 834 (164 S. E. 264), and cit.; Putney v. Bryan, 142 Ga. 118 (82 S. E. 519). The rule is the same as that which obtains in the case of an executor, unless the making of such an obligation is authorized by the will. See Walton v. Reid, 148 Ga. 176, 178 (96 S. E. 214), and cit.; Harris v. Woodard, 133 Ga. 104 (2), 108 (65 S. E. 250); O’Kelly v. McGinnis, 141 Ga. 379 (81 S. E. 197); Tennessee Chemical Co. v. Jones, 171 Ga. 150, 153 (154 S. E. 791); Lowden v. Eskedor, 169 Ga. 672, 674 (151 S. E. 385) ; Brannon v. Ober & Sons Co., 106 Ga. 168, 170 (32 S. E. 16) ; Lovelace v. Smith, 39 Ga. 130, 133; Wright v. Morris, 50 Ga. App. 196 (177 S. E. 365). Nor will the fact that an administrator, as in this ease, obtained from the superior court an order authorizing such a transaction render it valid, or estop him from subsequently attacking its validity, where all the debts are not paid and the legal duties of administration are uncompleted. This would be true even though all the heirs at law join in the application to the superior court, since, while the administrator as an individual and the heirs might thus estop themselves, the administrator could not by such illegal acts and conduct estop himself as the representative of the estate with unperformed duties to creditors.

3. Under the pleadings and the undisputed evidence, as stated, the court properly overruled the general demurrer to the administrator’s petition against the grantee in the security deed, for an injunction and for a cancellation of the deed; but erred in granting a nonsuit.

Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.

All the Justices concur, except Russell, O. J., who dissents from the first headnote.