Weitman v. Thiot , 64 Ga. 11 ( 1879 )

Jackson, Justice.

The court instructed the jury in this case that the sale by the administrator de bonis non was void, because he had obtained the letters and the order to sell fraudulently, in this, that the debt due to the church' was barred when the letters were granted in 1872' — barred by the act of 1839. The bond and mortgage were executed in 1854 and matured in 1855; the maker died in 1861 and letters were granted to* his father, who died in 1864; thence to 1872 there was uoadministration ; henee, in the judgment of the court below, the bond was barred by the limitation act of 1869. Even if it were so barred, it would seem that the grant of letters would have been good if taken out to pay an honest debt y or, at any rate, that the ordinary had adjudicated that question, and that the letters of administration, not having been got by fraudulent or false representations of any sort, would stand until revoked by the court which granted them.

1. However that, may be (and it is not necessary to decide it in this case), were the bond and mortgage given by the intestate in 1854 and due in 1855 barred by the act of 1869 ?. We think not. The statute of limitations was suspended in 1868, and only then it could begin again to run. The estate was then unrepresented, and the bar would not attach' until five^years more had expired; because the period of five years is allowed from the close of the administration first granted to the beginning of that de bonis non by our statute. Code, §2928. To this, as there was no administrator to sue on the 1st of January, 1879, nine months and fifteen days should be added from the expiration of five years after July, 1868. 55 Ga., 85. So that it is very clear that when administration was granted in 1872, this debt was not barred, and therefore the court was wrong in the charge which pronounced it barred. ’ And the creditor had a clear right to administer without considering or deciding whether he could have done so to secure a barred debt.

2. But the sale did not take place until nine months and fifteen days after the grant of administration de bonis non, so that it may be asked why was not the debt barred when the sale took place and the proceeds were applied to the debt? The answer is, because the administrator could not sue himself, and masinuch as he was one of the trustees ■who held the legal title in common with others, the spirit of the decision in 57 Ga., 568, would apply, and the debt would not be barred while he was trying to sell and have it paid, and not unreasonably delaying the matter. The facts show that he pressed the matter as rapidly as was practicable, and was guilty of no laches. Therefore the bond and mortgage were not barred in equity when the sale took place.

3, 4. — It is clear that the lands, if held and possessed by the heirs adversely, cannot be sold by the administrator until he sues and recovers them. Code, §§2564, 2483, 2486 56 Ga., 430.

But that is a contested point on the facts, and while the court charged the law thereon, and that was the real issue in the case, yet the charge of the bar of the statute and fraud of the administrator concluded the case for complainants without reference to this issue ; and therefore the case must be tried over again. The charge in respect to the extent of possession by construction when the party actually possesses part, is right, as we understand it. The law is-that it extends as far as the boundary of the tract described in the deed, if recorded, or if the boundaries are known to-the contesting party.

5. There was no error in admitting the deeds which were over thirty years old, they appeared genuine, and came from-the proper custody. Code, §2700.

The judgment is reversed on the ground that the court erred in the charge in respect to the debt being barred and fraud in the administrator in taking out letters and selling; the land mortgaged to pay it.

Judgment reversed.