Murdock v. Mitchell

By the Court Lyon, J., delivering the opinion. Upon the death of Elizabeth Brown, the drawer and grantee of the lot in controversy, the titile was cast upon Mary Cross, the only child of the intestate, and her husband, James Cross, as the only heir at law of said intestate, subject only to the payment of debts of intestate; and as there were no debts, the whole title vested absolutely in them without the necessity of administration. Adverse possession to this title commenced in 1827, during the life of Mary. She and her husband could have maintained ejectment for its recovery against the tenant. Carruthers vs. Baily, 3 Kelly, 108; see also Wellborn vs. Weaver, 17 Ga., 270 Upon the death of Mary, the daughter and wife, subsequently in 1840, whatever [77] title, equity, or interest, she might have had in the land during the coverture, by reason of her husband not having reduced the same into his actual possession — see Chappell vs. Causay, 11 Ga., 28—vested absolutely in her husband, James Cross. Bryan vs. Rooks, 25 Ga., 624. Here, then, was the legal title to this land from 1840 to 1849, in James Cross, with an adverse possession under a claim of right, supported by a paper title, running all the time not only against his title, but all the world. What prevented him from bringing his action of ejectment for the recovery of the possession during all this time? If it be replied, that he could only sue as administrator on the estate of his wife, we answer, that is not so certain. What is the necessity of an administration under the cricumstances ? No distribution is to be made, no account to be taken or rendered; then, why administer ? He is the heir at law. Again, nearly twenty years have elapsed since the death of h'is wife — what evidence-have we, that no administration has been had onfher estate? But allow that an administration was necessary, and that none has been had, we ask why Cross, the heir at law, did not administer and assert his right before the statutory bar attached ? What obstacle was there to an administration? None whatever; and his failure to administer, even if that was necessary, in time, is as fatal to kis right to recover as the failure to bring his action within'Mle statutory period. Shall he be permitted to slumber over his rights, until the claims of third persons have ripened into a -paramount title ? — until the rights of innocent and bona fide purchasers have attached, and then do, indirectly, through this otherwise unnecessary administration, what he could not do himself directly? We apprehend not. This question has been frequently before this Court, and as often decided by it, that a Court of Equity under the circumstances, would, by injunction, protect the occupant from such action. In Jonekin vs. Holland, 7 Ga., 591, one Studstill, who was the owner of the lot in dispute at his death, died intestate in 1820, leaving all of his children and heirs at law, of age. Subsequently, Jonekin held the lot adversely more than seven years. Holland took out letters of administration on the estate of Studstill in 1846, and brought ejectment against Jonekin for the recovery of the lot. Jonekin filed his bill setting up these facts, and.prayed a perpetual injunction. Judge Lumpkin, who pronounced the opinion, [78] says: “I am happy to find that my brethren are quite clear, that equity will interpose to protect the occupant under the facts set forth in this bill. It would be a palpable fraud on the law, to permit the heirs to do that indirectly, under color of an administration, which they have lost their right to do directly.” In Woolfolk vs. Beatty, 18 Ga., 523, which was a bill filed for the same purpose, the Court say, “ In 1852, forty-two years after the adverse possession began, James Beatty administers upon the estate of Andrew McNeely, with no debts to pay, and commences his suit at law to recover the property for the purpose of distribution. And this injunction is prayed for to restrain the action. We are fully satisfied, under the facts and circumstances of this case, that the injunction should have been granted.” In support of that decision, this Court refers to Wagner vs. Baird, L Howard 234, in which the Supreme Court of the United States lays down the principle thus broadly : “ Long acquiescence and laches, by parties out of possession, are productive of much hardship and injustice*to others, and cannot be excused but by showing some actual hindrance or impediment. The party guilty of such laches, cannot screen his title from the just imputation of staleness, merely by the allegation of an imaginary impediment or technical disability.” “What,” says this Court in applying the principíate the facts in Woolfolk vs. Beatty, “ is the pretence, upon wi^ich the great hardship and gross injustice in recovering this property from these bona fide purchasers, sought to be justified? -That no administration has been taken out upon the estate of old Andrew McNeely. Why, did not the heirs force one forty years previously? Is not this, in the language of the authority, an imaginary impediment, a mere technical disability ? There was no greater obstacle then than now. If a disability existed, it was voluntary and self-imposed.” So Ave say, again, in this case. The decree of perpetual injunction must be affirmed.