Opinion
13353.
DECEMBER 4, 1940. REHEARING DENIED DECEMBER 18, 1940.
Levy and claim. Before Judge Jones. Crawford superior court, March 19, 1940.
W. B. Mitchell and Homer Beeland, for plaintiffs in error.
J. M. Hancock, contra.
1. The motion to dismiss the writ of error, for failure to name certain persons as parties defendant in error, is denied.
2. The action was by an administrator to recover land from the daughter of a deceased heir of the intestate. The defendant's answer set up issuable defenses to the suit as brought, and the court erred in striking it on general demurrer, and in directing the verdict for the plaintiff.
No. 13353. DECEMBER 4, 1940. REHEARING DENIED DECEMBER 18, 1940.
T. B. Vissage, as administrator of the estate of J. T. Vissage, advertised certain land for sale as the property of his intestate. A claim affidavit filed in the court of ordinary was in part as follows: "Said tract of land . . is advertised for sale by T. B. Vissage, as administrator of the estate of J. T. Vissage, and recites an order of the court of ordinary of Crawford County. . . Affiant says that the above described property is not the property of the estate aforesaid, but is the property of her mother, Mrs. J. B. Vissage, Mrs. Bud Carroll, and Annie V. Hortman, affiant." This affidavit was signed only by Mrs. Annie V. Hortman. The claim was duly transmitted to the superior court by the ordinary (Code, § 113-1801). Thereafter the administrator filed in the superior court a petition against Mrs. Hortman and her husband, alleging, among other things, that J. T. Vissage died seized and possessed of the land as the owner; that it was not to the best interest of the heirs that the property of the estate of J. T. Vissage be divided in kind; that at the instance of the heirs the petitioner had applied for and obtained letters of administration of the estate, for the purpose of bringing the property to sale for distribution and the payment of accrued taxes due to Crawford County; that he had obtained from the ordinary an order authorizing the sale; that Mrs. A. V. Hortman, a daughter of J. B. Vissage, a deceased son of the intestate, is in possession of the land and has filed a claim thereto; that she has no interest in the estate other than her undivided interest of her father's share therein; that the administrator is entitled to the possession of the property to make proper distribution of the estate; and that the defendant (claimant) has no right to its possession. The plaintiff prayed that the entire controversy between the parties be settled by a decree of the court.
To this petition the defendant filed an answer. She admitted that J. T. Vissage died seized and possessed of the land as the owner; that J. B. Vissage was an heir of J. T. Vissage, and died leaving surviving, his wife Mrs. J. B. Vissage, the defendant, and another daughter, Mrs. Bud Carroll. She admitted that J. B. Vissage was entitled to one seventh interest in the estate of J. T. Vissage, but alleged that after the death of J. T. Vissage "there was a division in kind of all the heirs," by which J. B. Vissage obtained and acquired all the property in controversy "and went into possession thereof." She denied that she had entered into any agreement to have T. B. Vissage appointed administrator of the estate of J. T. Vissage for the purpose of distribution and payment of accrued taxes. For lack of sufficient information she could neither admit nor deny the obtaining of the order of sale referred to. She alleged that her father, J. B. Vissage, had entered into a contract with her, whereby it was agreed that she was to move on the property and make certain improvements thereon including "a mill-house to be used and operated on said premises by the said Annie V. Hortman, as long as she might choose to live there and operate the same, or at least until she was fully paid for such improvements;" that J. B. Vissage further agreed to buy "baby chicks to start a commercial chicken business," and to furnish feed for raising them; that the defendant was to look after them, and the profits were to be divided equally; that pursuant to the contract the defendant moved on the property and made stated improvements thereon of the approximate value of $600; that she fully performed her part of the contract, and by its terms she "is entitled to remain on said premises until she has been fully compensated for the above-stated sums;" and that according to the plaintiff's allegations the property is "worth not exceeding $40 per year." In an amendment the defendant among other things elaborated on the agreement between the heirs of the estate of J. T. Vissage, dividing the realty in kind, and claimed that she was "in equity and good conscience" entitled to the possession of the land in controversy until reimbursed for the improvements made under her contract with J. B. Vissage, her father.
The judge struck the defendant's answer on general demurrer, directed a verdict for the plaintiff "for the real estate involved in this litigation," and entered a decree awarding possession of the property to the plaintiff. The defendant excepted to these rulings.
A motion has been made to dismiss the writ of error, for the reason that the plaintiff in error did not make her mother Mrs. J. B. Vissage, and her sister Mrs. Bud Carroll, parties defendant in error in the bill of exceptions. This motion is denied. The petition of the administrator was one seeking a consolidation of a dispossessory warrant which he had filed against Mrs. Hortman and her husband, to which they had filed a counter-affidavit, and the claim case above described. He prayed that all of the parties thereto be required to come in and set up their rights to the property, so that the entire controversy over the property could be settled in one decree. Mrs. Hortman in her claim affidavit asserted that the property belonged to her mother Mrs. J. B. Vissage, herself and her sister Mrs. Bud Carroll, but she did not purport to make them parties or to be claiming in their behalf. Upon the filing by the administrator of the petition for consolidation, Mrs. Vissage and Mrs. Carroll filed a pleading headed "In the matter of: J. T. Vissage Estate," and in which they expressly alleged that they had not authorized Mrs. Hortman to file a claim in their behalf and were not in fact parties thereto. They further alleged that they had no interest in the land except to the undivided interest of J. B. Vissage in the estate of J. T. Vissage. Since the administrator sought to make them parties only in so far as they were claiming the land and were parties to the claim filed by Mrs. Hortman, and since they showed that they were not in fact parties thereto, and did not seek to defend against any right of the administrator to recover, it was not necessary to make them parties defendant in error in this court on the theory that they were parties in the court below interested in sustaining the judgment.
2. An administrator may sell land of his intestate when it is necessary to do so for the payment of debts or for the purpose of distribution. Code, § 113-1706. The sale must be authorized by an order of the ordinary, obtained as provided in § 113-1706 et seq. ( Edwards v. Sands, 150 Ga. 11, 102 S.E. 426; Waller v. Hogan, 114 Ga. 383, 40 S.E. 254). If the land is in the adverse possession of an heir, the administrator must first recover possession. "An administrator may not sell property held adversely to the estate by a third person; he shall first recover possession." Code, § 113-1714; Weitman v. Thiot, 64 Ga. 11 (3); Davitte v. Southern Ry. Co., 108 Ga. 665 ( 34 S.E. 327). Where either or both of the grounds exist which authorize an administrator to procure an order for the sale of land as provided in § 113-1706, the administrator may recover possession of the land from an heir. § 113-908. In a suit by an administrator to recover land from an heir, where the administrator has obtained from the ordinary an order for sale of the land, the order is prima facie evidence of the necessity to sell on the ground stated in the application therefor, when service of notice of the application was by publication as required by § 113-1706, supra, and is conclusive thereof when the heir was given personal notice. § 113-908; Davis v. Howard, 56 Ga. 430; Park v. Mullins, 124 Ga. 1072 ( 53 S.E. 568); Brown v. Glover, 156 Ga. 640 ( 119 S.E. 607). In Head v. Driver, 79 Ga. 179 ( 3 S.E. 621), Chief Justice Bleckley said: "Prior to the Code, it was not absolutely settled whether or not an administrator could recover in ejectment against an heir at law, without first obtaining an order of sale from the court of ordinary. 3 Ga. 111; 14 Id. 145; 20 Id. 141. Under the Code, it is the better practice, if not indispensable in most cases, to obtain such order." In this same connection it was said in Luttrell v. Whitehead, 121 Ga. 699, 703 ( 49 S.E. 691), "An administrator may apply for leave to sell land which is held adversely to him at the time of the application. Indeed, if his purpose is to recover land held adversely by an heir, an order of sale is a necessary prerequisite." An examination of these cases will disclose that in neither was it necessary to decide whether an order for sale of the land is a prerequisite to a suit by the administrator to recover land from the possession of an heir; and the point has been settled, contrary to the opinions expressed therein, by the decision of this court in Gann v. Runyan, 134 Ga. 49 ( 67 S.E. 435), where it was distinctly ruled that "although there may be no order of sale granted by the ordinary [italics ours], and the administrator may never have been in possession, and there may be no debts, and the heirs of the intestate may all be sui juris, yet if the conditions are such that a sale of realty left by the intestate would be necessary in order to make proper distribution among the heirs, the administrator might recover possession from an heir or one occupying the position of an heir." See also Adams v. Phillips, 132 Ga. 455 ( 64 S.E. 467); Winn v. Simmons, 141 Ga. 680 ( 81 S.E. 1106); Caraker v. Brown, 152 Ga. 677 ( 111 S.E. 51); Green v. Underwood, 108 Ga. 354 ( 33 S.E. 1009).
The present suit by the administrator is for all intents and purposes an action to recover possession of the land from the daughter of a deceased heir of his intestate. He alleged that he had obtained from the ordinary an order authorizing a sale of the land. In answer to this allegation the defendant alleged that for want of sufficient information she could neither admit nor deny "the obtaining of the order." Under our Code an allegation of fact in the petition may be put in issue so as to put the plaintiff to his proof in reference thereto by either denying the allegation or by alleging that the defendant "can neither admit nor deny such averment, because of the want of sufficient information." Code, § 81-103. It follows that the existence of the order was put in issue by the answer of the defendant, to the same extent as had the existence of the order been denied (see 49 C. J. 263); and so far as the plaintiff sought a recovery of the land on the existence of such order, the answer set up an issuable defense. Cf. Dixon v. Rogers, 110 Ga. 509 ( 35 S.E. 781). However, as already pointed out, since the obtaining from the ordinary of an order of sale is not a prerequisite to a suit by the administrator against an heir for possession of land, but he may in the absence of such order nevertheless recover upon allegations and proof that it is necessary to sell the land for payment of debts or for the purpose of distribution, the petition may otherwise show grounds for recovery, if it is affirmatively alleged that it is necessary to sell the land, on one or both of such grounds. In this connection the plaintiff alleged "that it is not to the best interest of the heirs of the estate of J. T. Vissage that the realty be divided in kind, but said heirs desire that T. B. Vissage be appointed administrator of said estate and bring the property to sale for distribution, and the payment of accrued taxes against the estate of the said J. T. Vissage, due the County of Crawford." This constituted an allegation that it was necessary to sell the land for the purpose of distribution, but did not amount to an allegation that it was necessary to sell the land for the payment of debts. It is doubtful whether the allegation, properly construed, can be said to aver that in fact taxes are due to the County of Crawford; but even so, it is not definitely alleged that it is necessary to sell the land for the purpose of paying such taxes. The mere existence of debts does not authorize the administrator to recover possession of land from an heir. Holt v. Anderson, 98 Ga. 220 ( 25 S.E. 496). Cf. Finch v. DuBignon, 117 Ga. 113 ( 43 S.E. 423). It accordingly appears that the only allegation on which the administrator was entitled to recover was that one as to the existence of the order of the ordinary authorizing the sale, and, aside from this, the independent allegation that it was necessary to sell the property for the purpose of a proper distribution. As already pointed out, the defendant by her answer put in issue the obtaining and existence of an order of the court of ordinary authorizing the sale. In answer to the other allegation she alleged that it was not necessary to sell the property for the purpose of distribution among the heirs, for the reason that there had been a division of the realty by the heirs in kind, and that her father had received thereunder the land in controversy and had gone into possession thereof. An administrator can not recover possession of land from heirs for the purpose of distribution among them, where they have in fact divided the property in kind and each has gone into possession of his part. See Harris v. Seals, 29 Ga. 585; Barron v. Burney, 38 Ga. 264; Park v. Mullins, 124 Ga. 1076 (supra); Amis v. Cameron, 55 Ga. 449; Johnson v. Hall, 101 Ga. 687, 689 ( 29 S.E. 37).
If the view we have taken of the pleadings in the case is correct, the defendant's answer set up issuable defenses to the cause of action as alleged; and accordingly the court should not have stricken the answer and directed the verdict. Of course, if the plaintiff proves the existence of an order of the ordinary authorizing the sale, the defendant can not defend against it unless it is made to appear that she was not given personal notice of the application therefor. And even if lack of personal notice is shown, if the order (which was not attached to the petition and does not appear in the record) was granted for payment of debts, or for the payment of debts and distribution, and not for distribution alone, mere proof that there had been a division in kind among the heirs would not be a defense to the plaintiff's right of possession of the land, since a division of the realty by the heirs among themselves would not affect the administrator's right to its possession for payment of debts. But these are matters that will arise upon the trial. The defendant is not entitled to possession of the land as against the administrator, by virtue of any agreement in reference thereto between her and her father, J. B. Vissage; but, as shown above, her answer otherwise set up an issuable defense to the plaintiffs action for possession of the land, and it should not have been stricken on demurrer.
Judgment reversed. All the Justices concur.