Sutton v. Ford
| Decision Date | 10 July 1923 |
| Docket Number | 3383. |
| Citation | 118 S.E. 747,155 Ga. 863 |
| Parties | SUTTON v. FORD ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The failure of the ordinary or his clerk to make an entry of an order of adjournment of the court of ordinary, granted at a regular term to some subsequent day, where the business of the court requires it, does not render void an order passed for the sale of land, upon the petition of an administrator provided such adjournment was duly ordered during the regular term of the court.
Where an order granted by a court of ordinary is of such a character that it could only be granted in term time, and the order recites that it was granted in term time, but the date of the order is different from that upon which the court convenes under the law (the first Monday in the month), the presumption arising in favor of the regularity of the order and that it was granted, as recited, in term time, will overcome the presumption arising from the mere date.
Where in the trial of a case, certain documentary evidence was offered and objections were made to its admission in evidence, and the court admitted the document in evidence but announced that the defendant would have the right to renew his objections if facts bearing upon the materiality of the evidence offered were not shown, and other testimony relating to the materiality of such documentary evidence was submitted, counsel objecting to the admission of the document should have renewed their objections in order to avail themselves of such objections in this court.
The court did not err in permitting a witness, who professed to know the facts, to testify as to the amount that came into the hands of an administrator from the sale of certain lands over the objection that the deeds executed by the administrator pursuant to said sale would be the best evidence as to the amount of the purchase money paid the administrator by the purchaser at the sale. Harwell v Fitts, 20 Ga. 723.
Additional Syllabus by Editorial Staff.
In suit to set aside administrator's deed, where plaintiff amended at the trial to attack order of ordinary authorizing sale on ground that it was not granted during the term and minutes showed no adjournment, court should have granted continuance to enable defendant to procure the ordinary or his deputy clerk to show order was properly granted, and, if necessary, to have it spread on the minutes.
Error from Superior Court, Worth County; R. Eve, Judge.
Suit by P. B. Ford and others against R. L. Sutton. Judgment for plaintiffs, and defendant brings error. Reversed.
Where court admitted documents over objection with announcement that defendant might renew objections if facts bearing upon materiality were not shown and testimony relating to materiality was submitted, the objections should have been renewed in order to be available in Supreme Court.
P. Brooks Ford and others, defendants in error, hereinafter called the plaintiffs, sought in this case to have adjudged as null and void: (1) An administrator's deed made by J. A. Haynes, administrator of plaintiffs' father, in 1904, to Mrs. Rowena J. Ford, plaintiffs' mother; and (2) a warranty deed made by Mrs. Rowena J. Ford later in the same year to the plaintiff in error, Sutton, hereinafter called the defendant; each of the deeds purporting to convey a 75-acre tract of land which belonged to the plaintiffs' father at the time of his death. The grounds which plaintiffs alleged for nullifying the deeds were: (1) That the tract of land was, at time of the administrator's sale, included in the dower which had been assigned to Mrs. Rowena J. Ford therein; (2) that there were no debts owed by their father's estate, so as to authorize said reversionary interest (remaining after the dower estate was exhausted) to be sold by the administrator; (3) that their father's administrator had perpetrated a fraud by representing to the ordinary that there were debts of the estate which rendered it necessary to sell said reversionary interest, and that for that reason the order of the ordinary ordering the sale of the reversionary interest was void on account of fraud in its procurement; (4) that Mrs. Rowena J. Ford, who was the purchaser at the administrator's sale, had notice, through her agent, of said alleged fraud of the administrator in bringing about the sale of the reversionary interest; (5) that the defendant Sutton at the time when he bought the land from Mrs. Rowena Ford, was not a bona fide purchaser without notice of the alleged fraud, and therefore his title was voidable in the same degree as was the title which their mother, Mrs.. Rowena Ford, had acquired at such administrator's sale; and (6) that the administrator's sale was the result of conspiracy on the part of the administrator and defendant Sutton and another party named Hiensohn. On the contrary, defendant insists that the record shows: (1) There were not only debts owed by plaintiffs' father's estate at the time when the administrator's sale was had and the order therefor procured, but that these debts were in judgment and would have sold this reversionary interest in the dower lands, by an unfriendly or adverse sale, if the administrator had not procured such order and sold the reversionary interest at a friendly sale; and (2) the defendant also insists that the record shows that those very debts of the estate were actually paid out of the proceeds of these very lands, the sale of which is now sought to be set aside; and (3) the defendant insists that the existence of the judgments against the plaintiffs' father's estate, which was shown by the evidence, was a conclusive answer to the allegation that the administrator had been guilty of fraud in representing to the ordinary that there were debts; and (4) while the evidence was possibly issuable as to whether or not the administrator (who was the agent of the plaintiffs' mother at the time of the sale) was actuated by an improper motive, and as to whether or not the defendant bought the land without notice of any fraud on the part of the administrator, still the defendant insists that the overwhelming weight of the evidence was on his side of these issues.
At the trial (this being the second trial of the case) plaintiffs offered an amendment to their pleadings, in which it was alleged that the administrator's sale was not granted in term time. It is alleged in this amendment that although the administrator's deed to Rowena J. Ford recites that the order of the court of ordinary therein mentioned was "granted at the regular February term, 1904, of said court," that in fact said order, dated "4th day of Feby., 1904," was granted in vacation and while the court was not in session; for the court convened on the first Monday in February, 1904, and the first Monday in February of that year was the first day of that month; and in the amendment it is alleged further that the court did not, by any order passed and spread on its minutes (or otherwise) adjourn over to any subsequent day, but that the February term. 1904, of said court of ordinary had been finally adjourned prior to the 4th day of February, 1904, the day on which the order of sale was passed. And it is averred in the amendment that because of the facts recited the order of sale was a mere nullity and void, and that it conferred on the administrator no power or authority to bring the land to sale, and that the sale under the order was a nullity and of no legal force or effect; and that neither ...
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