Ralph v. Ward

• Decision Date: 01 December 1899
• Parties: RALPH et al. v. WARD.
• Court: Georgia Supreme Court

34 S.E. 610

109 Ga. 363

RALPH et al. v. WARD.

Supreme Court of Georgia

December 1, 1899

Syllabus by the Court.

1. The notice which section 4790 of the Civil Code requires partitioners of realty to give to all parties of the time of executing the writ need not be in writing.

2. While tenants in common of realty may agree among themselves to divide the same, and assign to each his proportionate part, and while, if such a division is made, and each tenant takes possession of the part assigned to him, such agreement will bind them, their heirs and privies, yet, if such an agreement is made, and not fully executed by each one taking possession of his part, and thereafter some of the tenants in common execute mortgages upon their undivided interests in the whole tract, and these mortgages are foreclosed, and the undivided interests sold by the sheriff, under the mortgage fi. fas., to the mortgage, who had no notice or knowledge of the division, he is not bound by such division; nor can a tenant who did not mortgage his interest set up, as against the purchaser, or a vendee of the latter, his long and uninterrupted possession of that part of the land of which he had taken possession under the agreement of division.

Error from superior court, Stewart county; W. N. Spence, Judge.

Action by Emma Ward against Nelson Ralph and others. Judgment for plaintiff. Defendants bring error. Affirmed.

J. B Hudson and B. F. Harrell & Son, for plaintiffs in error.

A. Hood and Clarke & Harrison, for defendant in error.

SIMMONS C.J.

Mrs Ward filed her petition for partitioning a certain tract of land in Stewart county, claiming that she owned a three-fourths interest in it, and that the heirs of Isham Ralph owned the other one-fourth interest. Partitioners were appointed in accordance with the Code by the judge of the superior court; and they proceeded to partition the land, and set aside to Mrs. Ward her three-fourths interest. They made their return to the superior court in accordance with the provisions of the Code, and in that return they stated that all parties at interest had received the notice required by law. At the term at which the return of the partitioners was to be made the judgment of the court, the administrator of Isham Ralph and his heirs at law moved to set aside the return of the commissioners on the ground that they had not received the eight-days notice provided for in the Code. Testimony was taken upon this question, which shows that they had received verbal notice of the time and place when the partitioners were to meet and partition the land, but none of them had received written notice. The trial judge overruled the motion to quash the return of the partitioners, holding that it was not necessary that parties should have written notice, but that verbal notice of the time and place, etc was sufficient. To this ruling the defendants excepted.

1. Section 4790 of the Civil Code requires that partitioners after they have been appointed by the order of the court, shall give all the parties eight days' notice, if possible of the time of executing the writ. The section is silent as to whether the notice shall be verbal or written; but inasmuch as there is no provision made for any return of such notice, or any entry thereof on any of the papers in the proceedings, we think that verbal notice was sufficient, when the return of the commissioners alleges that...