Bailey v. Ross Adm'r

• Decision Date: 28 February 1882
• Citation: 68 Ga. 735
• Parties: Bailey. vs. Ross, administrator, et al.
• Court: Georgia Supreme Court

68 Ga. 735

Bailey. vs. Ross, administrator, et al.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1882.

Administrators and Executors. Ordinary. Judgment. Before Judge SIMMONS. Bibb Superior Court. October Term, 1881.

Reported in the decision.

Lyon & Gresham; W. Dessau, for plaintiff in error.

Hill & Harris; Whittle & Whittle; Billups & Hardeman; Hall & Son, for defendants.

SPEER, Justice.

Albert B. Ross, administrator, defendant in error, applied to the court of ordinary for leave to sell the lands of James B. Bailey, his intestate, and having procured the necessary leave, proceeded to advertise the same for sale; whereupon plaintiff in error filed his bill to enjoinsaid administrator from selling said land, for the reasons that:

(1.) There are no debts of the estate of James B. Bailey, and no reason why said lands should not be divided in kind, and especially as he was desirous of having his part apportioned to him in land, and not the proceeds thereof.

(2.) Because the existence of a cross bill, filed by John T. and Edgar C. Bailey against the plaintiff in error and others, in which the title to said lands was in controversy, formed a cloud upon the title to said lands, and would prevent their bringing an adequate price, if sold before said cloud could be removed by the ending of said litigation.

(3.) Because the clerk of the superior court being the administrator on said estate, the proceeds of said sale would not be protected by any bond pending the litigation under this and the previous bill, and the land, if not sold, would be more productive and a safer investment than any that could be made by said administrator to await the decisions in said cases.

The answer set up in substance that the complainant was concluded by the judge of the court of ordinary as to the sale of said lands, and that the clerk of the superior court, who is the administrator, is solvent, and the proceeds of the sale would be safe in his hands.

Upon the hearing of the case upon the bill and answer and exhibits attached, the court below refused the injunction; whereupon the complainant excepted.

We see no abuse of discretion in the chancellor below in refusing this application for an injunction. All the matters now set up and assigned as a reason why the sale of these lands should be enjoined, existed and were well known to the complainant before the granting of the leave to sell by the ordinary. The record shows that the application for leave to sell was regularly made, and the notice thereof given to all parties interested by the publication provided by law. There is no pretence on thepart of the complainant that any unusual course was taken by the administrator in making this application to procure this order of sale, and if he had any cause of objection such as he now sets forth in his bill, no excuse is given why the same was not offered by way of...