Flanders v. Flanders , 23 Ga. 249 ( 1857 )

By the Court —

Benning, J.

delivering the opinion.

Was any one of the grounds of the motion fora new trial good ? We agree with the Court below in thinking, that not one was.

That the first and second grounds, were not good, a bare reading of the evidence, ought to satisfy anybody.

As to the third ground, there is this to be said:

First, according to the great preponderance of the evidence, the sale made by the administrator, David Flanders, was not a sale to himself, but to a third person, Lightfoot.

Secondly, this sale took place some ten years before the commencement of the suit. One of the daughters of the intestate had been married four years before the commencement of the suit. That daughter and her husband, and the widow of the intestate, are two of the complainants — counting the daughter and her husband, as one party.

Of these two parties, then, one was sui juris, ten years, the other four years, before the commencement of the suit. The suit was the first complaint which either of them, or which, indeed, any of the complainants, so far as appears, ever made against the sale.

We think, that a delay of complaint against such a sale, for as much as four years, by persons sui juris, is a delay for an unreasonable length of time. In four years, trover is barred.

The request contained in this third ground, was general; it was, therefore, a request as much applicable to the case of these two parties who had thus been sui juris for at least fouryeais, as it was to the case of the other parties who were still non sui juris. This request, being thus general, was rejected as a whole.

[1.] Now no case, I believe, has gone the length of deciding, that the heirs can repudiate a sale made by the administrator to himself, unless they elect to repudiate it, within a reasonable time.

All which being so, we think, that there was nothing in this third ground.

I beg to refer to Mercer vs. Holloway, decided at this term, for some views of my own, on the question of the validity of sales made by administrators to themselves.

As to the fourth ground, it seems, that the terms of sale were, that purchasers were to give their notes, to fall due in a short time after the sale, for the price of the articles they might purchase. And it also seems, that Lightfoot, who bid off the negroes in dispute, gave his note made payable at the end of a short time, for the price at which he bid them off But if Lightfoot did this, he fully complied with the terms of the sale, and therefore, (supposing him to have been acting for himself,) acquired a complete title to the slaves.

These things being the facts of the case, they were such that they did not authorize this request.

What is said of this ground, it must be manifest, is applicable to the sixth, and is sufficient to show, that that ground is not good.

The fifth ground is the only one that remains.

If the charge referred to in this ground, was “erroneous,” it can hardly be said, that it was a charge “against” the applicants for the new trial. Acts of 1854, 46. There was a vast preponderance of proof in favor of, the hypothesis, that the sale was not made to the administrator at all, but, to Lightfoot. If, therefore, the Court had even gone so far, as to charge, that a sale made by an administrator to himself, is absolutely void, the charge would not, if the jury had done their duty by the evidence, have at all benefitted the complainants in the bill. Ji fortiori is this true, if the Court had gone no further, than to charge that such a sale was voidable at the option of the heirs. And further than this, it is not contended that the Court ought to have gone.

It may admit of a serious doubt too, whether the latter clause of the charge, was not intended to apply to “void,” and not to “voidable,” in the previous clause.

Upon the whole we are not satisfied, that this fifth ground is a sufficient one.

I refer again to Mercer vs. Holloway, for some views of my own, on the question involved in this ground.

We think the judgment ought to be affirmed.

Judgment affirmed.