Patterson v. Lemon

McCay, Judge. 1. We recognize the well settled rule, that in order to divest the heirs-at-law of their title by an administrator’s sale, the administrator must have authority to sell. This is a sine qua non. Without it the sale is void: 4 Wheaton’s Reports, 77 ; Clements vs. Henderson, 4 Georgia, 148. Under our law, this authority is the judgment and order of the Ordinary having jurisdiction of the administration, duly had and rendered : McDade vs. Burch, 7 Georgia, 559. It is also true, that to made a perfect sale to divest the title regularly, the administrator must comply in full with the provisions of the law as to the mode of sale: Worthy vs. Johnson, 8 Georgia, 236; 10 Ibid., 358. But whilst a sale without authority is void, a sale without a strict compliance with the requirements of the law, is only voidable. Even an innocent purchaser gets nothing under a void sale; but if the sale be voidable only, innocent purchasers, those having no notice, either actual or con [236] structive, of the irregularity, are protected. The heirs-at-law, in such a case, are driven for redress, if they have been hurt, upon the administrator and his securities. These are well-settled principles applicable to judicial sales: See Revised Code, section 2586. And, though in some of the States, administrators’ sales are treated like tax collectors’ sales, as sales under the authority of a Court of limited jurisdiction, and the recitals of the deed are required to be very full, even to give the deed validity, yet the distinction between the want of authority to sell, which makes the sale void, and a failure to conform strictly to the mode of sale, which makes it voidable only, is very uniformly adhered to: McPherson vs. Cunliff 11 Serg. & R., 422; 4 Dallas, 119 ; Messenger vs. Kruter, 4 Binney, 105 ; 6 Binney, 496; Perkins vs. Fairfield, 11 Mass., 227; Watson vs. Watson, 11 Conn., 77; 2 Vermont, 234; 4 Kent’s Com., 344-5 ; Worthy vs. Johnson, 8 Georgia, 236; Tucker vs. Harris, 13 Ibid., 1; Brown vs. Redwine, 16 Ibid., 67. It may be remarked, too, that since the decisions referred to of our own Court, our law declares, in terms, that Courts of Ordinary are, in this State, Courts of general jurisdiction. If this statute is to have any meaning at all, it can only be to provide that persons claiming under such judgments shall stand in the same situation as those claiming under judgments of Courts of general jurisdiction. If this be the rule in Georgia, many of the decisions on the subject of administrators’ deeds in other States, as to the strictness -with which such sales are to be scanned, do not apply here. 2. Under the Act of 1816, and up until the adoption of the Code, the place of administrator’s sale was only in the county where the land was situated. But, by the Code, section 2519, it is provided that the place of sale shall be in the county having jurisdiction of the administration, unless the Ordinary shall, by special order, direct the sale to be had in the county where the land lies. We confess that we doubt the projn’iety of this change in the law. The practice of the country for forty years, and common experience, indicate that the county where the land is situated is the proper county in [237] which to expose it to public sale. And the Act of 1863-4, providing that the notice of sale shall be in some newspaper having general circulation in that county, indicates the legislative opinion that it is there purchasers will most probably be found. But, we are satisfied from the words of section 2519, as well as from the context, that it was not the intent of the Codifiers to make this special order of the Ordinary a part of the authority to sell, without which the sale would be void. The authority to sell — the sine qua non of a valid sale — is provided for in section 2518 of the Code, (Irwin’s.) Section 2519 is as follows : “Every such sale shall be advertized (in any newspaper having a general circulation in the county where the property is located: Act of 1863-4, p. 60,) for forty days after the leave granted, and before the sale. It shall be at public auction, on the first Tuesday of the month, between the usual hours of sale, and at the place of public sales in the county having jurisdiction of the administration, unless, by special order in the discretion of the Oi’dinary, a portion of the land is sold in another county where the land lies.” It seems to us very clear that it was the intent of the Codifiers to place this duty to get a special order for the sale in the county where the land lies, among that class of acts by the administrator which pertain not to his authority to sell but to the mode of sale; that it stands upon the same footing as his duty to advertise forty days in a paper circulating in the county where the land lies, or to sell within the usual hours of sale, etc.; and that the failure strictly to comply makes the sale only voidable and not void. In such cases, the right of the heirs to have the sale set aside depends upon the innocence of the present holder of the lands. 3. We do not decide, at present, that it was not Jennings’ and Smith’s duty to inquire after this special order, though for myself I doubt it. The sale was in a county not unusual for such sales to be had; indeed, for forty years previously to 1863, such sales must have been in the place where the land was situated. But, in the case before us, a second sale has taken place. Patterson appears to have bought under the [238] recitals in the deed, to-wit: that the sale was in pursuance of an order of the Ordinary, and after due notice, etc. True, there is no specific recital of any special order, fixing Fulton county as the place of sales; but there is a general recital that the sale was in pursuance of the order of the Ordinary. We think, under this recital, Patterson had a right to presume a compliance with everything the law required, except the authority to sell. In this case, the authority to sell did, in fact, exist, as the record shows. The defect in the administrator’s proceedings is as to the mode of sale; and as there is no proof of any notice to Patterson of this defect, we think the sale not voidable as to him, or as to others standing in the same relation, under the proof, as contained in the record. Judgment reversed.