Isom v. Nutting , 153 Ga. 682 ( 1922 )

•Hill, J.

(After stating the foregoing facts.)

1. The sole question involved in the case is, are the purchasers from and under Julia A. Cook bona fide purchasers without notice that Julia Cook or her attorney purchased the lands described in the petition at the sale which she was conducting as administratrix ? - The case is argued by the attorneys for plaintiff in error upon this theory alone.

It is well-settled law in this State that an administrator can not . purchase at his own sale, either directly or indirectly, and that such sale is voidable at the instance of heirs at law of the intestate, who do not ratify the sale, and who move to set it aside within a-reasonable time. See DeVaughn v. Griffith, 149 Ga. 697 (101 S. E. 794). It is conceded on the argument here by counsel for plaintiffs in error that if it be determined that subsequent purchasers are such bona fide and for value without notice, then the trial judge properly dismissed the petition on demurrer. But it, is contended that none of the subsequent purchasers from Mrs. Cook were bona fide purchasers without notice of the fact ■that- the ■ administratrix purchased the lands at her own sale; and it is ■ argued that a purchaser is chargeable with notice of recitals in- a deed constituting a muniment of title, as well as every-fact appearing upon record with reference to his title; citing Devlin, on Deeds, 1889, § 1000.- In the case of Rosser v. Cheney, 61 Ga. 469, it was said that “ The first purchaser and those claiming under him stand charged in law with notice of the recitals in the deed from Bosser to Cheney and wife. That deed forms a link in the chain of title, and this court has held that its recitals affect them, whether they examine it or not. They might and ought to have examined it, and are in the same situation as if they had examined it. Notice is not synonymous with knowledge, but has a much broader signification. If a person either knows a thing or is legally bound to inform himself of it, he has notice. The law is not indulgent to ignorance where diligence has been omitted.” The above case was cited as authority by plaintiffs in error; but we do not think it is controlling here, for the deed which was attacked in that case was void for the reason that the land sold in that ease was homestead property and was made without the proper order of court. But in cases like the present a sale by an administrator to himself is not void, but voidable at the instance of any person interested in the property. Moore v. Carey, 116 Ga. 28, 31 (42 S. E. 258).

In the case of Cox v. Barber, 68 Ga. 836, two executors sold realty of their testator; a third party bought; on the same day he conveyed the land to one of the executors individually; some two years thereafter the latter sold to a purchaser for value; the deeds on their face all purported to be for a fair and valuable consideration. It was held in that case: “ That in the absence of all actual notice, these facts appearing from the recorded deeds were not sufficient to put the purchaser on notice that the sale was by an executor to himself, so as to prevent his being entitled to protection as a bona fide purchaser.” And see Moore v. Carey, supra; Williams v. Smith, 128 Ga. 306 (57 S. E. 801). No actual notice is alleged whereby the purchasers from Mrs. Cook and her vendees had knowledge of the fact that she was a purchaser at her own sale; and the consideration expressed in the deeds subsequently to the deed to Mrs. Cook expressed a fair consideration; and this being so, we can not hold, as contended by the plaintiffs in error, that there is constructive notice sufficient on .the face of the conveyances to the subsequent purchasers that the administratrix bought at her own sale, or that the transactions were not made in good faith. There is nothing in the record to show, that James Humphreys, who bought at the administratrix’s sale, was the attorney or agent for her in the purchase of the property. All of the conveyances from 1906 down to the last conveyance in 1919 show valuable considerations on the face of the deeds, and that the purchase-money was paid in each case. Our Civil Code, § 4120, declares: “A title obtained by fraud, though voidable in the vendee, will be protected in a bona fide purchaser without notice.” And it is said in § 4535: “ If one with notice sell to one without notice, the latter is protected; or if one without notice sell to one with notice, the latter is protected, as otherwise a bona fide purchaser might be deprived of selling his property for full value.” The mere fact that the purchaser took a quitclaim deed is insufficient of itself to negative the purchaser’s good faith, etc. Marshall v. Pierce, 136 Ga. 543 (4) (71 S. E. 893). In the case of Williams v. Smith, supra, it was held: “ When it is affirmatively shown that the defendant is a bona fide purchaser for value from one claiming under'the common grantor, and there is nothing to show actual knowledge to the purchaser of the alleged equity, or knowledge of any fact sufficient to put him upon inquiry, the presumption arises that he is a purchaser without notice, and the onus of proving notice is shifted to the plaintiff.”

It will also be observed from the allegations of the petition that the administratrix sold the land under an order from the ordinary, and the sale of property by an administrator under proper order from the court of ordinary would ordinarily divest the heirs of the estate of the title to the property sold. See Clements v. Henderson, 4 Ga. 148 (48 Am. D. 216); McDade v. Burch, 7 Ga. 559 (50 Am. D. 407); Patterson v. Lemon, 50 Ga. 231 (1), 235. Copelan v. Kimbrough, 149 Ga. 683, 686 (102 S. E. 162). The Civil Code (1910), § 4039, declares: “To divest the tit1 e-of the heir at law, the administrator must have authority to sell; if there be irregularities, or he fail to comply with the law as to the mode of sale, the sale is voidable, except as to innocent purchasers. And as to innocent purchasers the same is good and divests the title of heirs.” Merritt v. Jones, 136 Ga. 618 (71 S. E. 1092); King v. Cabaniss, 81 Ga. 661 (3), 667 (7 S. E. 620).

2. We are of the opinion that the demurrer should have been sustained for another reason. The plaintiffs should have all the parties defendant named in the petition served and made parties. “ In a proceeding in equity, all persons having a legal or equitable interest in the subject-matter of the suit must be made parties,” etc. “No court of equity should undertake to reform a written instrument conveying title to property, in an essential matter, without having before it all of the parties to be affected by the proposed reformation.” Wyche v. Green, 32 Ga. 341 (1, 2). At least three or four of the parties named in the petition as purchasers, who were warrantors to subsequent purchasers, were not served and were stricken from the petition by amendment. We are of the opinion that they were necessary parties to the case and should have been so made and served.

3. The demurrer should have been sustained because the plaintiffs do not show their right to sue. Generally heirs at law can not sue for land without the consent of the administrator, if there is one. Anderson v. Goodwin, 125 Ga. 663 (5) (54 S. E. 679); Crummey v. Bentley, 114 Ga. 746 (3) (40. S. E. 765); Yopp v. A. C. L. R. Co., 148 Ga. 539 (2) (97 S. E. 534). The petition in the instant case shows that there is, or was, an administratrix, and there is nothing to show that the administratrix has ever been discharged, or her consent given to bring the suit, or an arbitrary refusal to grant such permission.

We conclude from all of the foregoing that the court did not err in sustaining the demurrer and in dismissing the petition.

Judgment affirmed.

All the Justices concur.