Thrift Bros. v. Baker

Atkinson, J.

We think the judge erred in allowing the amendment to the petition, and that a reversal of the judgment is required, and that other assignments of error relate to matters which will not likely occur on another trial. We will therefore discuss only the question as to the allowance of the amendment. It is declared in the Civil Code, § 4033, which has the force of a statute, that “An administrator can not sell property held adversely to the estate by a third person; he must first recover possession.” In Lowe v. Bivins, 112 Ga. 341 (37. S. E. 374), applying this provision of the code, it was held: “In an action for the recovery of land, where it was necessary for the plaintiff to rely upon a deed to such land made in pursuance of an administrator’s sale of the same, and it clearly appeared from the evidence that, at the time of such sale, a considerable portion of the land was held adversely to the estáte of the intestate by a third person, a verdict in favor of the plaintiff for the premises in dispute was contrary to the evidence and to law.” A similar ruling was made in the case of Hall v. Armor, 68 Ga. 449. The same doctrine was recognized in Hanesley v. Bagley, 109 Ga. 346 (34 S. E. 584), where it wás said by Cobb, J.: “Moreover, his ease would fall for the reason that, at the time of the administrator’s sale, under which he holds, the administrator was not only not in the possession of the land, but the same was in the possession of another holding adversely to such administrator; and for this reason, if for no other, Clay acquired no interest under the deed.” The doctrine was likewise applied in Downing Lumber Co. v. Medlin, 136 Ga. 665, 668 (72 S. E. 22), wherein Holden, J., said: “The main reason that such sales are made void is that property, though actually belonging to the estate, would not likely bring its full value when held adversely to the estate, and the administrator could not give possession. . . It makes no difference whether the land be designated as wild land, or by some other description; the fact that it is held adversely to the estate makes the sale of it by the administrator of the estate void.” From the foregoing, it may be said that a purchaser of land at administrator’s sale, while the land is held in adverse possession to the estate which the administrator represents, derives no interest or title to the land by virtue of his purchase and the deed given in pursuance of the sale. The doctrine of caveat emptor applies to administrators’ sales (Mercer v. Sager, 129 Ga. 123, 58 S. E. 1037); and the purchaser at a void administrator’s sale does not, by virtue of the transaction, acquire an interest in the property attempted to be sold. If he could recover the purchase-money which he might have paid (see Williamson v. Walker, 24 Ga. 257 (71 Am. D. 119); Ramsey v. Blalock, 32 Ga. 376), that would be different from getting an interest in the property of the estate which was attempted to be sold illegally. The. attack made upon the administrator’s deed pointed out a1 dilemma which the plaintiffs recognized and sought to avoid by amendment to the petition, whereby the administrator was made a party plaintiff, suing for the use of the original plaintiffs. The attempt however, was futile. A person may sue in the name of another for his use, if he has a beneficial interest to protect, and the legal right to sue is in the other. Wheeler v. Stapleton, 99 Ga. 731 (27 S. E. 724); Holcombe v. Richmond & Danville R. Co., 78 Ga. 776 (3 S. E. 755); Civil Code, § 5689. But there is no rule which authorizes a person having no beneficial interest to protect to sue in the name of another for his use. The plaintiffs in this case sought to sue in the name of the administrator for their use, on the unfounded hypothesis that they were privies in estate to the administrator. It was contended, that although the administrator’s deed was ineffectual as conveying title, yet it operated as authority to the grantee and his privies in estate to use the name of the administrator in suing for their use. The administrator is a statutory officer, having authority to sue for the benefit of the estate which he represents (Civil Code, § 5933), but there is no authority for him to sue for the use of a stranger. Had the administrator attempted to sue for the use of the plaintiffs in this case, he would not have been authorized to do so; much less would his void deed, by implication, have conferred upon the plaintiffs the right to sue in his name for their use. The amendment, in effect, added a new and distinct party plaintiff, which the statute prohibits. Civil Code, §§ 5683, 5515, 5516. We are not constrained to hold differently on account of anything said in the cases of Williams v. Rawlins, 33 Ga. 117; English v. Register, 7 Ga. 387; Thompson v. Richards, 19 Ga. 594; Wood v. McGuire, 21 Ga. 576; none of which involved administrator’s deeds.

The judge erred in allowing the petition to be amended, and in refusing to sustain the motion to exclude the administrator’s deed.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent.