Copelan v. Kimbrough

• Decision Date: 15 January 1920
• Docket Number: 1415.
• Citation: 102 S.E. 162,149 Ga. 683
• Parties: COPELAN ET AL. v. KIMBROUGH ET AL.
• Court: Georgia Supreme Court

102 S.E. 162

149 Ga. 683

COPELAN ET AL. v. KIMBROUGH ET AL.

No. 1415.

Supreme Court of Georgia

January 15, 1920

Rehearing Denied Feb. 14, 1920.

Syllabus by the Court.

The order of the court of ordinary granting leave to an administrator with will annexed to sell land belonging to the estate he represents is a judgment of a court of competent jurisdiction. It imports legally a necessity for the sale and such judgment, apparently regular, cannot be collaterally attacked. It represents the authority for the sale of real estate, and when sold to an innocent purchaser, in accordance with the statute, such sale divests the title of the heirs although there may be irregularities.

Where the petition of such administrator for leave to sell land of the estate he represents recites that "the testator [died], leaving a tract of land in said county, on which he resided," containing a designated number of acres, upon which the court of ordinary rendered a judgment granting leave to sell the land upon the administrator's "proceeding in the premises as required by statutes in such cases made and provided," such judgment is not void for lack of a legally sufficient description of the land.

Where the deed of an administrator with will annexed recites that the land was exposed for sale under and by virtue of an order of the court of ordinary, and the order of said court required that the administrator "proceed in the premises as required by the statutes in such cases made and provided," the deed will be held valid, although it does not recite that the sale took place between the hours required by the statute, in the absence of anything to show the contrary.

The judgment of the court of ordinary, referred to in the preceding headnotes, is not void for lack of notice or service upon the owners of the land, where the petition to the court of ordinary for leave to sell alleges that the petitioner "has given due notice of his intended application" and the judgment of the court of ordinary is based on such petition. "Due notice," nothing appearing to the contrary on the face of the record, will be held to mean a full compliance with the law in regard to notice and service.

Where the petition of such administrator to the court of ordinary for leave to sell, referred to in the preceding headnotes recites that "such is the situation of the land that no fair division can be made amongst the heirs at law," it must be assumed that legally sufficient reasons were shown to the court authorizing a judgment granting leave to the administrator to sell the land.

The foregoing rulings control the decision of the case before us. Other rulings of the court upon which errors are assigned and authorities cited are not decided, because they are only pertinent where a direct attack is made on the judgment.

Error from Superior Court, Hancock County; J. B. Park, Judge.

Proceedings by Hattie Copelan and others against Alex Kimbrough and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Where the deed of an administrator c. t. a. recites that the land was exposed for sale under and by virtue of an order of the court of ordinary, and such order required that the administrator "proceed in the premises as required by the statute in such cases made and provided," the deed is valid, although it does not recite that the sale took place between the hours required by the statute, in the absence of showing to the contrary in view of Civ. Code 1910,§§ 4030, 6059.

Samuel R. Walker, as administrator de bonis non cum testamento annexo, filed in the court of ordinary of Hancock county a petition for leave to sell land, viz.:

"Georgia, Hancock county. To the court of ordinary of said county: The petition of Samuel R. Walker, administrator with the will annexed of Irby Hudson, showeth the said Irby Hudson [died], leaving a tract of land in said county, on which he resided, and such is the situation of the land that no fair division can be made amongst the heirs at law, four in number; and that he has given due notice of his intended application. Wherefore he prays the judgment of the court of ordinary granting an order to sell the land of said estate. September 1, 1862. S. R. Walker, Administrator, with will annexed."

Upon which the following order was passed:

"On reading and filing the petition of Samuel R. Walker, administrator of, etc., of the estate of Irby Hudson, deceased, it is ordered by the court that the prayer of the petitioner be granted, and that he have leave to sell the tract or parcel of land upon his proceeding in the premises as required by the statutes in such cases made and provided."

The administrator de bonis non cum testamento annexo exposed said land for sale, executing to the purchaser a deed which contained, among other recitals, the following:

"Whereas the ordinary for the court of said county, on the 4th day of August in the year 1862, upon the application of Samuel R. Walker, administrator with the will annexed of Irby Hudson, late of said [county], deceased, did pass an order for the sale of the real estate of said deceased, hereafter described, legal notice of said application having been first given in one of the public gazettes of this state two months previous to the granting of the order aforesaid; whereas the said Samuel R. Walker, administrator of Irby Hudson, as aforesaid, having first given 40 days' notice of said sale and of the time and place thereof in one of the public gazettes of this state, to wit, the Chronicle and Sentinel, and at the door of the courthouse in the county of Hancock, did on the first Tuesday in November in the year 1862, at the place of public sales in the county of Hancock aforesaid, expose to sale at public outcry under and by virtue of the order aforesaid the premises hereinafter mentioned; and whereas the said premises were then and there knocked off to Samuel C. Hitchcock, of the county of Sumter and state aforesaid, who was the highest bidder for the same, at and for the sum of $8,900.50."

In 1917 Irby Hudson, Jr., one of the devisees under the will of Irby Hudson, Sr., died, and his children brought ejectment against the person in possession of a portion of the land conveyed by the administrator in 1862. Upon the trial the plaintiffs introduced evidence of the possession of Irby Hudson, Sr., the will, its probate, and evidence tending to show assent by the executrix and administrator de bonis non cum testamento annexo to the devises, and offered other evidence tending to show such assent, which was rejected. The defendants offered the application of the administrator de bonis non cum testamento annexo, the order of the court of ordinary authorizing the sale of the land in dispute, and the deed executed by the administrator as aforesaid. The plaintiffs objected to the deed on the ground that it did not appear that the prerequisites of a valid sale had been complied with, especially in regard to the sale within the lawful hours prescribed by statute; there being no recital in the deed in regard thereto. The order of sale was objected to on the ground that it was void, in that--

"It did not appear that any lawful service or notice was had, but the order purported to the contrary; also that the land to be sold was not described with sufficient definiteness to authorize a sale of that in dispute; and, further, that it appeared from the evidence in the case that the title to the land had vested under the will of Irby Hudson in his devisees, and could not be sold by the administrator with the will annexed; the ordinary having no jurisdiction to partition land by sale, certainly not without personal notice and service upon the owners."

The court held that the order was not void and could not be collaterally attacked and admitted the evidence. A verdict was directed for the defendants, and the plaintiffs excepted.

John B. Gamble, of Athens, and Sam'l H. Sibley, of Atlanta, for plaintiffs in error.

Burwell & Fleming, T. M. Hunt, and R. L. Merritt, all of Sparta, for defendants in error.

GILBERT J.

1. The controlling question is whether the order of the court of ordinary granting leave to sell the land is void. If it is void, it may be attacked collaterally. If valid on its face, it cannot be collaterally attacked. In the latter event many of the contentions raised and elaborately discussed are immaterial. They could only become pertinent in the event of a direct attack. The court of ordinary has general jurisdiction of estates, testate and intestate.

"The order of the court of ordinary granting leave to an administrator to sell the lands belonging to the estate he represents is his authority for so doing. The authority being shown, the law 'presumes the court of ordinary required all the law requires to have been done before granting the order to sell, and we will not go behind that judgment.' Clements v. Henderson, 4 Ga. 154 . * * * The order to sell, being a judgment of a court of competent jurisdiction, imports legally a necessity for the sale, and such judgment cannot be attacked and set aside collaterally. It is not only leave to sell, but it is a judgment of the court that such sale will be for the benefit of the heirs and creditors of the estate. In favor of this judgment we are to presume the court did its duty." Davie v. McDaniel, 47 Ga. 195, 202; Roberts v. Martin, 70 Ga. 196; Park v. Mullins, 124 Ga. 1072, 1075, 53 S.E. 568; Gann v. Runyan, 134 Ga. 49, 51, 67 S.E. 435; Schulze v. Schulze, 149 Ga. 532, 101 S.E. 183; Civil Code 1910, § 5968; Doolittle v. Holton, 28 Vt. 819, 69 Am.Dec. 745; Stuart v. Allen, 16 Cal. 473, 76 Am.Dec. 551.

The sale of real estate at public sale by an administrator who is duly authorized to sell by an order of the court of...