Guthrie v. Moran , 192 Ga. 607 ( 1941 )

1. Where the same persons are administrators of a wife's estate and executors of the husband's estate, and have obtained from the ordinary orders to sell the lands belonging to each estate, if the heirs and legatees enter into an agreement that the entire property may be offered and sold together at one time, and the lands belonging to both estates are by the executors and administrators so cried off and sold at public sale, the sale can not on that ground be afterwards treated as invalid by one who entered into such agreement.

2. It was contended in the motion for a new trial, that the court erred in failing to charge the jury, in effect, that if there was a scheme on the part of the purchaser at the sale and the administrators and executors to the effect that the former was to bid off the property, not pay for the same and then deed it to certain heirs at law, including the administrators and executors, without any consideration, the sale would be void as against petitioner. There was no evidence to justify such a charge.

3. The complaint that the judge, over objection, admitted testimony of the agreement hereinbefore referred to, must be ruled adversely to the contention of the plaintiff.

4. While other attacks were made in the petition, the only one on which the testimony was in conflict was as to whether any such agreement as that above referred to was entered into before the sale by the plaintiff and others interested. It was not erroneous to charge the jury in effect that whether or not there was such an agreement was the only issue for them to decide.

5. The verdict was supported by the evidence, and no error is shown in the overruling of the motion for new trial.

No. 13789. JULY 9, 1941. Mrs. J. E. Guthrie brought her equitable action against John P. Moran, T. A. Moran, Mrs. Carrie Phillips, and Mrs. Millie T. Pate Cochran, residents of Carroll County, and J. F. Phillips and Mrs. Eunice Phillips, of Troup County. The substance of the allegations of the petition is as follows: W. T. Moran died in 1937, testate, leaving described real estate in Carroll County. His wife, Mrs. M. J. (Adams) Moran, died in 1920 without a will. Her sons, J. P. Moran and T. A. Moran, were appointed and qualified as administrators of her estate. On the death of W. T. Moran, the same sons were named in his will as executors, and they qualified as such. The testator devised to five children, Mrs. Effie Guthrie, J. P. Moran, T. A. Moran, Mrs. Carrie Phillips, and Mrs. Eunice Phillips, his entire property, which consisted of two described tracts of land, one of twenty-five acres, and the other of fifty acres, in the same land district of Carroll County. Mrs. M. J. (Adams) Moran was possessed, at the time of her death, of two described tracts of land in the same county, but in a different land district, one tract of thirty acres, and a tract of fifty acres. The executors of one estate and the administrators of the other estate obtained from the court of ordinary orders to sell said tracts of land of both estates, and after advertising did sell the described tracts of land of both estates to J. F. Phillips for a "purported" consideration for both properties of $900, $200 being the purported consideration for the lands held by the executors of W. T. Moran, and $700 for the lands of Mrs. Moran; but in fact no payment whatever was made by J. F. Phillips. The executors and administrators executed to J. F. Phillips, separate deeds to the lands left by W. T. Moran and by Mrs. Moran. On the same day that J. F. Phillips received deeds from the executors of the one estate and the administrators of the other, Phillips executed deeds conveying said lands to heirs and legatees of the deceased persons, as follows: To J. P. Moran, T. A. Moran, Mrs. Carrie Phillips, Mrs. Eunice Phillips, and Mrs. Millie T. Pate Moran a five-sixth (5/6) undivided interest in the lands left by Mrs. Moran, and to J. P. Moran, T. A. Moran, Mrs. Carrie Phillips, and Mrs. Eunice Phillips a four-fifths (4/5) undivided interest in the lands left by W. T. Moran; the plaintiff, Mrs. Guthrie, not being named as grantee in either deed. She alleges, that no consideration was paid either by or to J. F. Phillips; that the alleged transactions were but a fraudulent scheme on the part of the executors and administrators, conspired in by Phillips and the other named defendants, to purchase the property at their own sale; and that the lands which purportedly sold for $900 were reasonably worth $1500. She prayed, that all the deeds above referred to be canceled as clouds on the title; that the executors and administrators be required to readvertise the lands; that they be enjoined from purchasing at their own sale; and that petitioner recover her distributive share in each estate. She alleged that she was offered a check for $106.37 by J. F. Phillips, but that she declined it.

Answering this petition the defendants denied the material allegations, and among other things pleaded:

"(b) Prior to the date of the sale in question, all of the heirs, including the plaintiff in this case, agreed that when said property was sold at said administrators' and executors' sale as the lands of both the father and mother of plaintiff and these defendants, except J. F. Phillips, lay in such positions that they could be sold in three separate and distinct tracts, it should first be sold in separate tracts, and then it should be sold altogether in one tract, and whichever one brought the highest price would be the one that the administrators and executors should accept.

"(c) Defendants aver that on the date of the sale of the lands in question, defendants, John P. Moran and T. A. Moran, administrators and executors as alleged and set out in plaintiff's petition, in order to see that the said property was exposed in the ordinary way and brought the very best prices possible under the circumstances and conditions, hired a competent auctioneer, to wit, T. M. Hamrick, who sold said lands.

"(d) Defendants say that on the date alleged in plaintiff's petition, in compliance with the agreement alleged and set out in subparagraph (b) of paragraph 9 hereof, the lands and property in question were sold in three separate parcels: first, the highest aggregate bid for all three parcels being $708.50, then the same was sold in one parcel or tract and the highest bid was $900.00, and said auctioneer sold said property to this highest bidder, who was J. F. Phillips, one of the defendants named in plaintiff's petition in this case.

"(e) Defendants aver that plaintiff and her husband, J. E. Guthrie, were present at the sale of the aforesaid property, and said J. E. Guthrie participated actively in all of the bidding both when the property was sold separately and when it was sold together, and in fact was the highest bidder when it was sold separately.

"(f) Defendants show that plaintiff was very much disappointed because her said husband did not get the property on his bid when he bid off the property when it sold the first time separately, and plaintiff came to defendant, J. F. Phillips, and tried to get him to let plaintiff's husband, J. E. Guthrie, have the property at his the said J. F. Phillips' bid, which said Phillips refused to do, and she got mad about it, and this is the motive back of her trying to have the sale set aside.

"(g) Defendants show that the defendants John P. and T. A. Moran never at any time suggested to defendant J. F. Phillips that he even bid on said property at said sale, and that they never at any time asked him to buy in said property for them, and that he did not buy the property in for them, or either of them, and that they did not even know that he was contemplating bidding on same until he did bid on it.

"(h) Defendants show that said defendant J. F. Phillips bid said property off in the utmost good faith, and properly accounted to John P. and T. A. Moran, administrators and executors of the estates in question, for the full amount that said property was bid off for.

"(i) Defendants show that $106.37 represents the one-sixth distributive share of plaintiff in both the estate of her father, the said W. T. Moran, and of the estate of her mother, the said Mrs. M. J. Adams Moran, which was tendered to her on the 27th day of January, 1939, by defendants, John P. and T. A. Moran, in the form of a check on The Peoples Bank of Carrollton, Ga., signed by J. F. Phillips. The said check was accepted and kept for several days by plaintiff, and until after she had employed a lawyer to represent her.

"(j) Defendants say that in arriving at this amount of $106.37, the one-sixth distributive share of all of the heirs, legatees, and distributees of the said W. T. Moran and Mrs. M. J. Adams Moran, the bid that was made and accepted, the same being the highest bid made at said administrators' and executors' sale, is properly accounted for to the last cent.

"(k) Defendants say that said sale was held in a fair and equitable manner, and said property was put up and exposed for sale in the usual and ordinary way, and was sold to the highest bidder."

After introduction of evidence and charge by the court, a verdict for the defendants was returned. A motion for new trial was overruled, and the plaintiff excepted. 1. J. P. Moran and T. A. Moran were administrators of the estate of their mother and executors of the will of their father. The plaintiff is their sister. She and all the defendants, except the original purchaser, had equal interests in the properties, as heirs and legatees. While the evidence on this point was in conflict, there was testimony to the effect that the plaintiff, one of the heirs at law of her mother and one of the legatees of this property under her father's will, agreed that the property of both the father and the mother be put up, knocked off and sold together, just as it was done in the case before us; that is, that each portion should be offered separately, and then the property of both in one offer, and it should be knocked off and sold in whichever way it brought the most. It is undisputed that when first put up in parcels the sum of the bids therefor was less than the whole brought when cried off at one time. Mrs. Guthrie was present at the sale, and there is nothing in the record indicating that she then and there objected to the way in which it was sold, though she testified that to her brothers she had, a long time before the sale, objected to its all being sold together.

In the motion for new trial it is complained that the court, after charging the jury, "Now, I charge you that as a matter of law the property of two separate estates can not be sold together jointly at one and the same transaction, unless there is an agreement by all of the legatees under the will and all the heirs of the estate, by virtue of which the sale is had. If the property belonging to two separate estates is sold without any such agreement as that, it is a void sale and should be set aside," also instructed them as follows: "I charge you on the other hand, where two estates are to be sold, of man and wife, as was done in this case, but where all of the legatees under the will of the man and all of the heirs to the estate of that woman or wife enter into an agreement that the property may be sold together and instruct the executors and administrators to sell it in a lump, all together at one time, and in one transaction, and if the executors and administrators, by virtue of that kind of an agreement, sell the property in that manner, then it is a legal and valid sale, and all the parties would be bound by the sale thus conducted." The judge did not err in so charging. For the present we will not deal with the last sentence in the challenged extract from the charge, reserving that for later consideration, and will in this division of the opinion confine ourselves to the other portion.

The Code, § 113-1720, declares: "To divest the title of the heir at law, the administrator shall have authority to sell; if there shall be irregularities, or if he shall fail to comply with the law as to the mode of sale, the sale shall be voidable, except as to innocent purchasers." The words "authority to sell" refer to the order of the ordinary granting leave to sell.Wilcox v. Thomas, 191 Ga. 319 (12 S.E.2d 343). In Sapp v. Cline, 131 Ga. 433, 436 (62 S.E. 529), it was said that the "irregularities" mentioned refer "to such matters as the mode of advertising, or other irregularities in the procedure." InMerritt v. Jones, 136 Ga. 618 (71 S.E. 1092), the advertisement of the administrator's sale described the land as "lot of land No. 157, fifth district of Randolph County, Georgia, containing 202 1/2 acres, more or less." The administrator made public announcement at the sale that he was going to sell the "old Trippe place." He executed a deed to the purchaser, describing the land as lot number 158 in the fifth district of Randolph County. There being an order of sale by the ordinary, this was treated as a mere irregularity. The sale of the land in the wrong county, there being shown a general order granting leave to sell, but no special order to sell in the county where the sale took place, has been held to be a mere irregularity.Tucker v. Wimpey, 155 Ga. 118 (116 S.E. 315), and cit. We are not unmindful of the fact that the purchaser in the instant case had notice that lands belonging to two estates were being cried off together, and therefore he was not what the law calls an innocent purchaser. The foregoing authorities are cited, however, to show some of the things contemplated by the law as mere irregularities. Selling lands belonging to two estates all together, under the same bid, after having first offered them separately, and receiving a larger bid for them when offered as a whole, and accepting it, rather than the smaller amount of the total of the bids when offered one parcel at a time, could hardly be classed as more irregular than for an administrator to sell the land in the wrong county. Here the order to sell was granted. The administrators and the executors advertised the property and sold it at public sale. If this sale in the manner indicated was had under an agreement between all the heirs at law and legatees, it can not be set aside for such a cause at the instance of one who was a party to the agreement; and the charge of the court to that effect was correct. It was competent for the plaintiff to waive a mere irregularity in the manner of conducting the sale, and likewise it was competent for her to agree in advance that the sale should be had in the irregular manner above pointed out. She was not even injured thereby. The case of Roughton v. Rawlings,88 Ga. 819 (16 S.E. 89), does not sustain the position of counsel for the plaintiff. It was there merely held that a verbal agreement between two persons having no interest whatever in the property to be sold, that one or the other of them should bid off at an executor's sale a tract of land about to be sold, and that the same should then be equally divided between them, was not enforceable, because within the statute of frauds. We have not that character of case before us. The agreement relied on here was one respecting the manner of sale by third persons, and is not within the statute of frauds. The plaintiff is not seeking to have any agreement specifically performed, as in that case.

2. The rulings made in headnotes 2, 3, 4, and 5 will not be amplified.

Judgment affirmed. All the Justices concur.