McHenry v. Silas

Beck, P. J. Jackson McHenry brought complaint for land against Henry H. Silas, alleging in substance that he was duly appointed and qualified administrator of the estate of Eandall McHenry, who at the time of his death was in possession of certain described property which he held under a warranty deed from 6. Henstell; that the heirs at law were in possession of said property until 1925, when defendant took possession of the property and refused to deliver possession to plaintiff; and that Eandall McHenry died about the year 1887. The court sustained a general demurrer to the petition and dismissed the action. We are of the opinion that the court properly sustained the general demurrer. It seems that there was no administration on this estate until November, 1925. Petitioner’s intestate had then been dead over thirty-eight years. It is not alleged that there were any debts; and if there were any debts it is presumed that they were paid, or barred by the statute. In the petition it is alleged that the petitioner’s intestate died in June, 1887, and that “his heirs at law were in possession of said property” up to the date set out in plaintiff’s original petition, — that is, until 1925; and it will be assumed that they went into possession under application of the law that upon the death of the owner of land it descends directly to his heirs. Whether the heirs agreed upon a division among themselves or not does not appear; nor does it appear that they were ousted by the defendant; and if he had taken possession of the land unlawfully, they could have recovered it from him. There was no need for administration. The fact that the heirs went into possession of this property after the death of their father, the intestate, and remained in possession for over thirty years, makes an essential difference between the [178] facts in this case and those of Bullock v. Dunbar, 114 Ga. 754 (40 S. E. 783), and brings it more nearly within the principles ruled in the case of Hodges v. Stuart Lumber Co., 128 Ga. 733 (58 S. E. 354), though the facts in the case last cited are not in all respects similar to those involved in the instant case. Judgment afvrmed. All the Justices concur.