Fordham v. Duggan

Beck, P. J. (After stating the foregoing facts.) 1. We are of the opinion that the court properly disallowed the amendment, and subsequently, after hearing evidence, directed a verdict for the defendants. If there were no debts of the estate of J. J. Perry which rendered it necessary to sell the lands belonging to the estate, this could have been urged as a ground of a caveat to the application to sell the lands, and no reason is shown why this was not done. The order of the court of ordinary authorizing the same was a judgment of a court of competent jurisdiction, and can not be collaterally attacked; nor can it be vacated even in the same court, except upon notice and for good cause shown; and no cause is shown here, except that the allegation in the petition for leave to sell, showing that there were debts, was untrue. This allegation should have been contested upon that ground in a caveat filed before the order of the ordinary was granted. “Where after due notice' leave has been regularly granted by the court of ordinary to sell realty of a decedent, equity will not restrain the sale by injunction at the instance of an heir on account of reasons which could have been as readily urged on a caveat to the application for leave to sell.” Bailey v. Ross, 68 Ga. 735. And it can be said in this case, as in the one just cited, that “there is no pretense on the part of the complainant that any unusual course was taken by the administrator in making this application to procure this order of sale; and if he had any causo of objection such as he now sets forth in his bill, no excuse is given why the same was not offered by way of objection before the proper court that had full jurisdiction to hear and adjudicate the questions he now makes.” While the language which we have quoted was used in a decision affirming the refusal of the judge to grant an injunction against the sale, we think the reasoning is applicable to the facts of the present case. 2. The court did not err in disallowing the amendment. The allegation in the amendment seeking to have the order granting leave to sell canceled on the ground of fraud in the procurement of the order was but a step toward the cancellation of the admin [613] istrator’s deed to Coney, the purchaser at the administrator’s sale, and the deed from Coney back to Bowen, the former administrator. Bnt these deeds could not be canceled without making Coney a party, and there was no attempt to make him a party to the case. 9 C. J. 1227, § 132, and cit.; Kehoe v. Rourke, 131 Ga. 269 (62 S. E. 185); Biggs v. Silvey, 140 Ga. 762 (79 S. E. 857). 3. In view of the rulings made above, the other rulings of the court below on the admissibility of evidence were not error. Judgment affirmed. All the' Justices concur.,