Dukes v. Bashlor , 162 Ga. 403 ( 1926 )

Beck, P. J.

(After stating the foregoing facts.) We are of the opinion that the court did not err in overruling the demurrers. While there is a seeming inconsistency between the prayer that a decree be rendered placing the title to the property in question in petitioner, and another prayer for a judgment for the money which had been paid over, this in effect is a prayer for alternative relief; that is, it is a prayer seeking the recovery of the money paid in the event the plaintiff can not have title decreed in himself. It is competent for a court of equity to render relief where prayers for alternative relief are thus made and properly made under the facts alleged. Manifestly, the plaintiff is seeking to have the sale confirmed, and this the defendants, Dukes and the administratrix, also desire; that is, presumptively it is their desire, for we are passing on a demurrer, inasmuch as they seek the dismissal of the suit. But if the heir was actually in possession of the premises, claiming the right to the possession thereof and the right to exclude the purchaser from the premises, the sale was void, if it was held adversely to the estate. While Miner was one of the heirs, under the allegations in the petition his possession is to be treated as adverse to- the estate; and an administrator can not lawfully sell property of the estate that is held by a third person adversely to such estate. Before a lawful sale can be made the administrator must first recover possession. Civil Code, § 4033. But the defendants by demurrer make the point that the doctrine of caveat emptor is applicable to such sales; and that the purchaser in this case, having made the bid which was accepted at the. sale, and having paid the purchase-price and received the deed executed by the administratrix, can not now repudiate the sale. Of course we recognize the doctrine laid down in many of our cases, that the doctrine of caveat emptor applies to administrator’s or executor’s sales, and that a purchaser thereat can not repudiate his bid because of defective title or want of title in the decedent, when there is no fraud or misrepresentation by the administrator or executor; but where there is fraud or misrepresentation by the administrator, whereby a purchaser is induced to bid and pay for land sold at an administrator’s sale, an important exception to the rule is introduced. In the case of Holmes v. Holmes, 140 Ga. 217 (78 S. E. 903), it was said: “The principle of caveat emptor has never been carried to the extent that a purchaser at an administrator’s sale is not relievable against the fraud or misrepresentation of an administrator. If an administrator is guilty of imposition, and the purchaser is influenced in making his bid on account of the fraud or misrepresentation of the administrator, he is relievable of his bid. Colbert v. Moore, 64 Ga. 502; Jones v. Warnock, 67 Ga. 484; Kingsbery v. Love, 95 Ga. 543 (22 S. E. 617). If the administrator had been guilty of such conduct as to induce the purchaser to bid upon the faith that his intestate was the owner of the whole fee, and knew that such bidding was made under such misapprehension, it would be inequitable for him to hold the purchaser to a bid induced by his own misrepresentation.” So in the present ease we are of the opinion that if the administratrix and her attorney knew that the land in question was being held adversely to the estate and that the heir in possession had actually filed his claim thereto on the very day of the sale and just before the sale, and they concealed this fact, then such possession held adversely to the estate by a third person and his filing of a claim would constitute such fraud as would be relievable in equity, and would prevent the application of the doctrine of caveat emptor as against this petitioner.

There was no misjoinder of parties. If this petitioner did get title as against the party actually in possession and contesting the purchaser’s right and title, he had a right to have it settled in this suit; but if tbe sale was void, and the determination of the issue between the purchaser and the other party should be determined adversely to petitioner, then he had the right, if the other two defendants practised fraud as alleged, to recover the purchase-money. And he also had the right in the latter case to an injunction to prevent the attorney and agent who had actually received the money from paying it over to his principal, the administratrix, who was a resident of the State of Florida, it appearing that her bondsmen were insolvent. Though as a general rule a suit could not be maintained against an agent for a disclosed principal, the facts here are exceptional and make this case an exception to the general rule. Judgment affirmed.

All the Justices concur.