Smith v. Granberry

1. A purchase by an executor at his own sale is not void, but only voidable at the option of the legatees, their election to be made within a reasonable time, and an executor who takes possession of land so purchased, and claims it as his own, and places a tenant upon it, has adverse possession. And if he makes a marriage contract after he places the tenant upon the land and thereby, in consideration of marriage, conveys to his intended wife a life-estate in the laud, to commence at his death, and the marriage is solemnized and he dies soon after, leaving the tenant on the land, he becomes the tenant of the widow, and has no right to attorn to the administrator with the will annexed of the original testator, who has no right to interfere in a proceeding by the widow to dispossess her tenant who is holding over. If such administrator or legatees wish to assert their title it should be done by an action of ejectment or other proper proceeding for that purpose, to be commenced against the widow or her tenant in possession.

Equity. Landlord and tenant. Administrator buying at his sale. Decided by Judge Green. Monroe Superior Court. February Term, 1869. The will of James Hogan, deceased, was as follows: “ After paying my just debts I give to my beloved wife, Elizabeth Hogan, all my estate, both real and personal, during her natural life, and at her death I wish it, with the increase, to be equally divided, and one-half given by my executors to the lawful heirs of the body of my daughter, Eveline Scarborough, and the other half I wish given, the use of it, to Emeline Granberry, during her natural life, and at her death to be given to the lawful heirs of her body. If my wife should at any time think proper to give any portion of my estate thus bequeathed to the legatees above named, I wish her to do so, only at her own discretion through and by my executors.” Davis Smith and testator’s wife were the nominated executors. Smith qualified, took possession of the estate, and assented to Mrs. Hogan’s taking possession of the “ Hogan place,” six hundred and eighty-five acres of land in Monroe county, Georgia, under said will. She lived there until her death. Then Smith, as such executor, either without an order from the Court of Ordinary for the sale of the “ Hogan place,” or, if he had one, it was obtained by representing that the sale was necessary to pay debts, when in fact testator owed nothing, advertised said place for sale. Gran-berry, in behalf of himself and his wife and his children, and the other remaindermen, importuned Smith not to make such sale, but to no purpose. The terms of sale were kept secret till the time for selling; then Smith announced that he would sell it for cash, payable in gold, and would not wait twenty-four hours for any oue to raise the gold. He knocked off the place to one Hollis, Hollis not having bid for it. This pretended sale was on the first Tuesday in December, 1866. On the 28th of January, 1867, Smith, as suuh executor, made a deed purporting to convey to Hollis said place for $2,400 00 in cash, and on the 30th of said January Hollis made a deed reconveying it to Smith, in propria persona, at the same price. Smith, on the 19th of November, 1867, made an antenuptial contract with Mrs. Lanier, of Bibb county, by which, in consideration of their marriage, he conveyed to her said place during her life, upon certain terms, remainder to certain of his children. They were married on the same day. Smith rented out said place as his own to one Floyd for a term, and afterwards died. When the term had expired, Mrs. Smith, claiming under the marriage settlement, demanded the possession of the place, and Floyd refused to give it to her. Meanwhile, Granberry had taken out letters of administration de bonis non, cum testamento annexo, on Hogan’s estate, and claimed said place, and had Floyd to attorn to him as such adminstrator. Mrs. Smith made her affidavit against Floyd to turn him out, as a tenant holding over, and he met it with a counter affidavit, averring that he did not hold under her. She also sued him for the rent in arrear. When these cases were called for trial Granberry, as such administrator, and to protect the rights of the remaindermen under Hogan’s will, by bill against her and Floyd, brought these, matters to the notice of the Chancellor, averring that said conduct of Smith, as to the sale of the place, was but a purchase by himself at his own sale, and a fraudulent contrivance to get title to the place in himself, and therefore his title was void, and he conveyed no title to Mrs. Smith ; that Floyd was in law the tenant of Smith, as executor and by succession, at Smith’s death, of Granberry as administrator, and prayed that she be restrained from further litigation with Floyd in the premises or recovering rent from him, and that the deeds and her marriage settlement should be cancelled, because they were clouds on his title as administrator. The injunction was granted temporarily with order to show cause why it should not be permanent. Mrs. Smith answered the bill, averring that she had no notice of any of the matters set out in said bill when she married Smith, in consideration of his giving her a life-estate in said “ Hogan place.” Her counsel objected to further injunction upon the ground that there was no equity in the bill, or, if there was, it was sworn off by the answer. The Chancellor continued the injunction, and that is assigned as error on each of said points.