Mercer v. Newsom , 23 Ga. 151 ( 1857 )

By the Court. —

Benning, J.

delivering the opinion.

The Court below rejected certain evidence of the plaintiff Was the Court right in doing so ?

That evidence, if received, would have proved this: That Daniel Newsom sold the land as administrator of John Newsom, and bought it himself; that, afterwards, he sold it to Holloway, the claimant; that Holloway knew when he purchased it, that Daniel Newsom, had thus bought it at his own sale; and that Holloway had not paid Daniel Newsom fop the land.

No evidence was offered, to show, that the heirs of John Newsom had ever repudiated, or objected to the sale made by Daniel Newsom, as administrator, to himself.

Now, a sale by an administrator to himself, is not void, but only voidable. In Fleming et al vs. Foran at al., IS Ga. 594, this Court allowed legatees to annul such a sale; but the Court said, that legatees would not be allowed to annul such a sale, unless, within a reasonable time, they made their election to annul it.

I incline strongly to think, mysolf, that, by our law, ifsucli a sale is fair, it is good. It is to the interest of the heirs and creditors, that the property of the estate, should, when sold, fetch the highest price; and the more numerous the persons authorized to buy at a sale, are, the better, must be the chances for the property sold at that sale, to bring the highest price, if the sale be fair. By our law, an administrator’s sale is public; it is by auction; it is preceded by a public advertisement of the time and placo, when and where it is to be. The chances, therefor, are greatly in favor of the hypothesis, that the sale will be fair, even in the case in which the sale results in a purchase of the property by the administrator himself Besides, I do not know of any thing in our law, or indeed, in any law, that forbids an administrator to buy at his own sale, except, on the terms of having his purchase set aside, at the mere option of the heirs, or legatees. There is certainly nothing of this kind in the old act of 1764. That act contains these words: “And whereas, a custom hath prevailed among executors and administrators of taking estates or some part at the appraisement, when such appraisement hath often been under the real value; for prevention whereof for the future, Be it enacted, That no executor or administrator shall hereafter he permitted to take any estate, or any part thereof, at the appraisement, and that no appraisement to be made as aforesaid, shall be binding or conclusive, either upon the creditors, legatees, ox next of kin, or other person interested in such estate, or upon the executors or administrators, hut all and every such executor and administrator shall he chargeable and accountable for the true value of such estate, any practice to the contrary notwithstanding.” Cobb Dig. 302, and see Id. 307.

But, in the present case, the heirs have not elected to repudiate the sale; and that such a sale is good, until the heirs elect to repudiate it there is none, I believe, to dispute.

If then the rejected proof in this case, had been admitted, It would not have been sufficient to authorize the jury to find the property subject to the fi. fa. The rejection of the proof, therefore, could not have hurt the plaintiff in fi. fa., and therefore, the rejection of it could not amount to a material error against him.

Consequently, the plaintiff cannot be entitled to a new trial.

Judgment affirmed.