Fuller v. Little
| Decision Date | 31 August 1877 |
| Citation | 59 Ga. 339 |
| Parties | John B. Fuller et al., plaintiffs in error. v. Thomas J. Little,administrator, et al., defendants in error. |
| Court | Georgia Supreme Court |
Equity. Administrators and executors. Statute of limitations. Before Judge Underwood. Haralson Superior Court. March Term, 1877.
Reported in the opinion.
*Austin & Harris, by Z. D. Harrison, for plaintiffs in error.
William J. Head, by Jackson & Lumpkin, for defendants.
Joshua Dodson died in August, 1857, and Little administered upon his estate. In June, 1871, a bill was filed by the heirs at law of Dodson against Little, the administrator, and Head and Striker, purchasers from him of certain real estate once belonging to deceased, but sold by the administrator in 1858.
This bill was demurred to, the demurrer was sustained, and the bill dismissed. Before it was dismissed, the defendant filed a plea, the complainants replied with a replication, the court sustained the plea, overruling the replication, and the bill was dismissed on both grounds—on the demurrer thereto, and the insufficiency of the replication as a reply in equity to the plea. The complainants excepted to the judgment of dismissal, and the question is, was that judgment right on either ground—on sustaining the demurrer or the plea—taking the facts in the replication thereto to be true? The bill alleged the death of Dodson in August, 1857; the administration of Little; the sale, in 1858, of the lands Dodson left; the purchase thereof by another for the administrator for seventeen hundred dollars, when the lands were worth twenty-five hundred to three thousand dollars; that complainants then and there objected to the sale and repudiated it; James and Anna Dodson, not being of age at the time, but not according their majority until 1865 and after; that, in 1864, the administrator, at private sale, sold the land to Head and Striker for twenty-five hundred dollars, or other sum, who will knew that the sale was repudiated by the complainants; that Little never paid the purchase money of the land, and never accounted for one cent of the proceeds thereof; that no order, as required bylaw, was obtained from the ordinary to sell the land, nor was it advertised *and sold, as required by law in such cases—all of which was known to Head and Striker; and that the administrator and his sureties are all insolvent; that the administrator and Head and Striker are combining and colluding to wrong complainants, and, to do so, have had the land laid off as homesteads.
The prayer is for relief by setting aside the sales of the administrator to himself and from himself to Head and Striker, and bringing the lands back into the estate for distribution. At the August term, 1876, the bill was amended by alleging that Fuller and wife had purchased the share of James Dodson, and therefore he had not been made a party; and, further, by the allegation that Head and Striker have been in possession of the land since 1863, and have received the rents, issues and profits thereof, worth five hundred dollars per annum; and the prayer is amended by asking an account therefor, and that the lands be decreed to be theirs.
Taking this bill to be true, the first question is, was the demurrer properly sustained and the bill dismissed rightfully on the demurrer?
The demurrer was predicated upon four grounds: first, that there is no equity in the bill; secondly, because the bill shots good prescriptive title in Head and Striker; third, because complainants did not elect in a reasonable time to set aside the sale; and, fourth, because complainants are barred by the limitation act of 1869.
We think the demurrer should have been sustained upon two of the grounds therein taken. The complainants have not proceeded in a reasonable time to have the sale set aside. The land was sold in 1858, when all the complainants except James and Anna Dodson, (who attained their majority in 18...
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