Gammage v. Perry

• Court: Georgia Court of Appeals
• Writing for the Court: BELL, J. (after stating the facts as above).
• Citation: Gammage v. Perry, 29 Ga.App. 427, 116 S.E. 126 (Ga. App. 1923)
• Decision Date: 08 February 1923
• Docket Number: 13418,13419.
• Parties: GAMMAGE v. PERRY. PERRY v. GAMMAGE.

116 S.E. 126

29 Ga.App. 427

GAMMAGE v. PERRY.

PERRY v. GAMMAGE.

Nos. 13418, 13419.

Court of Appeals of Georgia, Second Division

February 8, 1923

Syllabus by the Court.

"Trustees and other representatives with custody of papers have ample opportunities to discover defects in the title of property in their care, and are estopped from setting up title adverse to their trust."

One who applies for and procures his appointment as administrator upon the estate of another, and deals with certain property as the property of the estate for a period of years, and who then applies for and obtains from the court of ordinary a judgment granting him leave to sell, and in pursuance of such judgment advertises and sells the property at public outcry in due form of law, executing to the highest and best bidder a deed of conveyance of the property signed by himself as administrator, is estopped, "upon the ground of public policy and good faith," from setting up any title or interest in the property based upon a claim anterior to his appointment.

It must follow that no evidence by which it is sought on the part of the administrator to set up such a claim in himself adverse to the estate should be admitted; and evidence having no other purpose or value, even if admitted, cannot be given any weight against such an estoppel, arising by admissions solemnly made in judicio.

An administrator cannot purchase at his own sale directly or indirectly; a fortiori, he cannot acquire the title to property belonging to the estate by a mere pretended sale consummated under an agreement with another to the effect that the latter would buy in the property without any liability to pay the amount of his bid, and would then convey the property to the administrator in his personal capacity.

A transaction between an administrator and another person such as is indicated in the preceding paragraph may be treated as void by any of the heirs or distributees, but they alone have the right to elect whether the transaction will be repudiated or affirmed.

In such a case an heir may affirm the sale as evidenced by the administrator's deed, and hold the administrator responsible for the amount recited therein as the price for which the property was sold, or he may avoid the entire transaction.

The administrator cannot in any case attack such a deed as invalid, upon the ground of his illegal action, either against a distributee or any other person, and will not be heard to raise the point that the heirs may or may not repudiate his act. The transaction as to him is valid and binding until it is attacked by one having the right to avoid it. He can take no advantage of his own wrong.

While the consideration of a deed may always be inquired into when the principles of justice require it, and while the recital in a deed of the receipt of purchase money does not estop the maker from denying the fact and proving the contrary, these principles will not allow an administrator to dispute the truth of a solemn recital contained in his deed that the property was exposed for sale, and that the highest bid was a stated sum, and that he sold the property therefor. He may deny that he has received the proceeds of the sale, but cannot deny the truth of the recital that the property was sold at public outcry for a stated sum.

Proof by an administrator that he has not received the purchase price of property for which his deed recites it to have been sold does not establish that he is not liable to the distributees for the price fixed in the sale, for the reason that he is liable therefor whether he collect it or not unless he prove an inability to collect, under circumstances which in law would render excusable his failure to collect it; especially is this true where the evidence of the administrator established, not an inability to collect, but an illegal agreement not to do so.

"In every case a garnishment may be issued against an executor or administrator for a legacy or distributive share, or for any debt or demand owing by said estate to any other person, if the creditor will swear, in addition to the oath required in ordinary cases, that his debtor resides without the state or is insolvent."

"In such cases the executor or administrator shall not be compelled to answer the garnishment until the estate in his hands is sufficiently administered to enable him safely to answer the same," but it is not incumbent upon the plaintiff to show the condition of the estate. This is a matter for plea or motion by the administrator.

"Where an affidavit for garnishment against an administrator omits the allegation that the defendant is insolvent, the omission may be supplied by amendment, unless in the meantime the garnishee, or some third party, has acted to his injury by reason of the omission."

A quitclaim deed by a distributee, the defendant in the judgment upon which the garnishment is based, conveying to the person who is the administrator garnished the interest of the distributee in the land illegally acquired by the administrator in the manner referred to above in paragraph 4 in which the consideration is recited as $5 and love and affection, does not show that, by reason of the omission in the affidavit for garnishment to allege insolvency of the defendant in fi. fa., the garnishee or any third person has acted to his injury, so as to bar an amendment supplying the omission, even if made after service of the summons and before the offering of the amendment.

Such quitclaim deed, while ratifying the illegal acquirement of the title by the person who is administrator, does not establish an extinguishment of liability of the administrator to make good to the estate the amount recited in the administrator's deed as the price for which the property was sold.

The uncontradicted evidence demanded a verdict for the plaintiff in garnishment.

None of the evidence, the refusal to admit which is complained of in the cross-bill of exceptions, was admissible for any purpose.

Error from City Court of Americus; W. M. Harper, Judge.

Garnishment proceedings by L. O. Gammage against J. A. S. Perry administrator. Judgment for the garnishee, and plaintiff brings error, and the garnishee brings a cross-bill of exceptions. Reversed on the main bill and affirmed on the cross-bill.

L. O. Gammage, as transferee of an execution which had been obtained by the Planters' Bank of Americus against W. H. Perry, as principal, and himself, as surety, instituted garnishment proceedings, and procured a summons of garnishment to be served on J. A. S. Perry, as administrator of the estate of M. L. Perry, on December 7, 1915. The garnishee answered on January 21, 1916, without any objection or exception to the garnishment proceedings, denying any indebtedness.

The case proceeded to trial at the January term, 1922, of the city court of Americus. The evidence which was admitted on behalf of the plaintiff in garnishment shows substantially the following facts:

The suit and judgment out of which the execution issued. The appointment of J. A. S. Perry as administrator of M. L. Perry's estate in February, 1909. Certain returns made by him as administrator, in one of which, dated January 5, 1914, the following, among other things, appeared: "On February 14, 1907, there was turned over to me as such administrator 200 acres of land in the old sixteenth district of said county (Sumter), being lot of land No. 250; * * * said land valued at $6,000." The administrator's application for leave to sell this land, granted in November, 1915. Evidence of the sale of the land in question after advertisement and in pursuance of such leave. A deed from the administrator, J. A. S. Perry, to T. M. Ethridge, conveying the lot of land mentioned, dated December 7, 1915, containing the following recital: "After advertising said land did on the first Tuesday in December, 1915, expose the same to sale before the courthouse door in the city of Americus, Sumter county, Ga., at public outcry, at which sale the same was knocked off to T. M. Ethridge, he being the highest and best bidder, for the sum of $8,000." That W. H. Perry was insolvent, and was one of the heirs of M. L. Perry, deceased, whose distributive share, considered in the light of the last return of the administrator and of the recitals in the administrator's deed, would appear to be in excess of the indebtedness of the plaintiff. The plaintiff rested.

The garnishee introduced certain deeds by which it was sought to establish title to the land in J. A. S. Perry anterior to his appointment as administrator, and certain oral evidence to the effect that the deed from J. A. S. Perry to his wife, M. L. Perry, already in evidence, dated November 28, 1893, was without consideration, and was made to her solely to enable her to procure a loan for J. A. S. Perry, and that the loan has been paid. Also evidence by the garnishee, sworn in his own behalf, to the effect that he had not received "one penny" from the sale of the land as administrator to T. M. Ethridge, as shown by the deed dated December 7, 1915; that he never surrendered possession of the property to Ethridge; also that "I did have an agreement with Mr. Ethridge on December 7, 1915, that he would buy it and convey it to me individually. I asked him to come and bid on it. * * * I have not paid out anything to the heirs since the sale of this land."

At the conclusion of the evidence the court directed a verdict for the garnishee. The plaintiff sued out a bill of exceptions, the assignment of error in which is to the effect that the evidence demanded a finding in favor of the plaintiff.

The garnishee brings a cross-bill of exceptions, assigning error upon the rulings of the court: In refusing to dismiss the...