Davis v. Howard

• Decision Date: 31 January 1876
• Parties: Larkin H. Davis, administrator, plaintiff in error. v. Thomas C. Howard, defendant in error.
• Court: Georgia Supreme Court

56 Ga. 430

Larkin H. Davis, administrator, plaintiff in error. v. Thomas C. Howard, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

Injunction. Administrators and executors. Judgments. Notice. Ejectment. Before Judge Peeples. DeKalb County. At Chambers. February'22d, 1876.

Reported in the decision.

L. T. Winn; L. J. Glenn & Son, for plaintiff in error.

R. H. Clark, for defendant.

Warner, Chief Justice.

This was a bill filed by the complainant against the defendant as administrator of Jane C. Howard, deceased, praying for an injunction to restrain the defendant from prosecuting an action of ejectment pending in the superior court of DeKalb county, until an appeal case from the court of ordinary, pending in said court, should first be tried. On the hearing *of the application for the injunction prayed for, the chancellor granted it, whereupon the defendant excepted.

The allegations in the bill, upon which the complainant's equity is based are, that at the death of the defendant's intestate the complainant was her sole heir-at-law; that the land which the defendant is seeking to recover in his ejectment suit descended to him as such heir; that he is in the possession thereof, and that the defendant's intestate owed no debts at the time of her death; that the defendant obtained an order from the court of ordinary for leave to sell the land of his intestate for the payment of her debts, upon the issuing of the usual citation by the ordinary, and publication thereof, as required by the 2559th section of the Code; that the complainant never saw that published notice, and had no other notice of the application for leave to sell the land by the defendant until after the order was granted; when he ascertained that such an order had been granted he applied to the ordinary to have said order set aside, on the ground that he had no legal notice of the application for leave to sell the land of the defendant's intestate, which motion the ordinary overruled, and the complainant entered an appeal to the superior court; that the ejectment suit of the defendant stands first on the docket of that court, and will be called and tried before the appeal case, unless the defendant shall be restrained from doing so by the injunction prayed for. Assuming the allegations in the complainant's bill to be true, as the defendant's demurrer thereto does, are the same sufficient to authorize a court of equity to interpose by granting the injunctions prayed for by the complainant? The solution of this question necessarily depends as to what is the proper construction to be given to the statutes in relation to the question involved. The 2559th section of the Code declares that "If at any time it becomes necessary for the payment of the debts of the estate, or for the purpose of distribution, to sell the land of the decedent, the administrator shall, by written petition, apply to the ordinary for leave to sell, setting forth in the petition the reason for such application; and notice *of the same shall be published once a week for four weeks before the hearing, in the gazette in which the county advertisements are published. If no objection is filed, and the ordinary is satisfied of the truth of the allegations in the petition, an order shall be passed granting the leave to sell, specifying therein the land as definitely as possible." It will be perceived that this is the section of the Code which authorizes the ordinary to grant leave to the administrator to sell the land of his intestate for the payment of debts, and the only notice which is required to obtain such leave is, that notice of the application shall be published once a week for four weeks before the hearing, in the gazette in which the county advertisements are published; that having been done, no other notice is required to make the order granting leave to sell the land, a legal and valid order for that purpose, for the simple reason that thelaw does not require any other notice in order to obtain leave to sell. What will be the effect of that order when the administrator seeks to recover the possession of the land from the heir, is an entirely different question. The administrator cannot sell the land for the payment of the debts of his intestate until he recovers possession of it from the heir, when the heir holds the same adversely to him: Code, section 2564. The 2486th section of the Code declares that "the administrator may recover any part of the estate from the heirs-at-law, or purchasers from them; but in order to recover lands it is necessary for him to show upon the trial, either that the property sued for has been in his possession, and, without his consent, is now held by the defendant, or that it is necessary for him to have possession for the purpose of paying the debts, or making a proper distribution. An order for sale, or distribution, granted by the ordinary after notice to the defendant, shall be conclusive evidence of either fact." The construction which we give to the 2559th and the 2564th sections of the Code is, that an order for leave to sell land by the ordinary, on the published notice, as required by section 2559, is a legal and valid order so far as the question of notice is concerned, and that no other notice than that *required by that section is necessary to obtain leave of the ordinary for the sale of land by an administrator. That when such administrator brings his action to recover the possession of the land from the heir, as provided by section 2486, the order for the sale thereof, under the provisions of section 2559, will not be conclusive upon the defendant so as to prevent him from showing that there were no debts due by the intestate of the administrator, unless the defendant had personal notice of the granting of the order for leave to sell the land for the payment of the debts of the intestate. The words "after notice to the defendant, " should be construed to mean personal notice, when it is sought to make the order of the ordinary conclusive upon him. To grant leave to sell the land of an intestate by an order of the ordinary for the payment of debts on the notice required by section 2559, is one thing, but to make that order conclusive upon the heir, is another and different thing. The fair and reasonable interpretation of these two sections of the Code is, that the ordinary may grant an order for leave to sell the land of an intestate for the payment of debts, as provided by section 2559, and such an order is legal and valid; but where the administrator seeks to recover the land from the possession of the heir, for the purpose of administering it for the payment of debts, under the 2486th section, that order granting leave to sell the land for the payment of debts, is not conclusive upon the heir, unless it be shown, that he had personal notice of the granting of the order, and in the absence of any proof of such personal notice, he may show that there were no debts due by the intestate at the time of her death. According to the view which we have taken of this case, the order of the ordinary granting leave to sell the land of the intestate, was a legal, valid order, which should not be set aside neither in the court of ordinary or in the superior court, on the appeal trial, for want of notice; inasmuch as the published notice in the gazette, is all the notice which the statute requires to obtain an order for leave to sell the land of the intestate by the administrator. To hold thatpersonal notice was necessary before an order could be obtained *by an administrator for leave to sell the land of his intestate, would be to interpolate words into the statue, which the general assembly have not put there. If the defendant did not have any personal notice of that order, he will not be concluded by it, on the trial of the case, from showing that there were no debts due by the administrator\'s intestate, so as to make it unnecessary for him to recover the land, for the payment thereof. If the order of the ordinary granting leave to the administrator to sell the land of the intestate, was void for want of personal notice to the heir, then he could attack it for that reason,...