Logan v. Gigley

[1.] Aforad by an administrator, to convey real estate of his intestate, in contemplation of a sale under the Ordinary's order, is void,' and is incapable of being enforced, either at Law or in Equity, as contrary to the policy of the Statute authorizing administrators to sell the real estate.of their intestate.

Covenant on bond for titles to land, in Bibb Superior Court. Tried before Judge Stark, January Term, 1850. George G. Myers, as principal, and George M. Logan, as security, on the third day of January, 1848, executed to Aaron S. Gigley their bond, in the penalty of eight hundred and fifty dollars, conditioned to be void, when the said Myers, as administrator of the estate of Charles T. England, deceased, should make or cause to be made, as such administrator, good and sufficient warrantee titles to lot No. 6, in square 36, according to the plan of the city of Macon, in the County of Bibb, unto the said Gigley, his heirs and assigns, as soon as the same could be done according to law. Upon this bond, the defendant in error, Aaron S. Gigley, brought his action in Bibb Superior Court against George M. Logan and George G. Myers. On the trial the plaintiff proved, by Col. Robert V. Hardeman, that he, as the agent of the plaintiff, a short time before the commencement of the suit, demanded from Logan titles to said property, in conformity to the terms of the bond. Logan refused to make titles, and said that Myers was gone to some of the northern States, and resided out of Georgia. Counsel for defendant then moved the Court for a non-suit, upon the following grounds : Because Myers, the principal in the bond, and a joint and several undertaker with Logan, had not been served, but was shown to be beyond the jurisdiction of the Court. . Because the testimony showed, that the undertaking in the bond was illegal and void, and that the obligors and obligee were cognizant of it, and all participes criminis, in this, that it was an obligation on the part of Myers, as administrator of Charles T. England, to sell the real estate of deceased, contrary to the Statutes regulating the sale of intestate’s real estate. Because, to sell real estate of intestate by an administrator, privately, and without an order of the Court of Ordinary, as regulated by Statute, is an illegal and void contract, and no action can arise in favor of an obligee in a bond, which shows, on its face, that it was given to enforce and carry out such a sale. Because it is contrary to the policy of the law to allow a recovery on bonds 6f this kind, because it enables the administrator and purchaser to perpetrate a fraud on the estates of intestate, and the policy of the law requires that the whole undertaking, bond and all, should be declared null and void. Because the contract, as shown from the evidence, is null and void. The Court overruled the motion for a non-suit, and counsel for defendant excepted.