UNITED STATES v. WILLIAMS et al., 164 F.2d 989

WALLER, Circuit Judge. The United States brought suit for the value of timber cut from a tract of land in Jones County, Georgia, which it had bid in at a judicial sale by F. M. Stewarr, Jr., who purported to act as administrator de bonis non of the estate of John Bland. The lands from which the timber was cut by the defendant, Williams, were formerly part of a larger tract owned by John Bland, who died intestate in 1901, a resident of Jones County, Georgia. His widow, Sarah Bland, was appointed administratrix of his estate by the Court of Ordinary of Jones County on June 10, 1901.

Thereafter she filed in the Superior Court of Jones County a petition for the admeasurement of dower, and that Court on October 22, 1907, assigned the tract here involved to Sarah Bland for life as her dower estate, and partitioned the remaining lands of John Bland among his thirteen children.

Thereafter on Sarah Bland’s petition for letters of dismission, reciting that there is no estate now left in her hands and that she had fully administered and paid all debts due the estate, the Court of Ordinary on December 7, 1908, entered an ouer discharging Sarah Bland from her administration and issued to her letters of dismission.

In 1924 Sarah Bland died and in November of that year Elizabeth Bland Wilson, a daughter of John Bland, made application to the Court of Ordinary of Jones County for letters of administration on the estate of her father, her petition reciting: “ * * * that John Blann departed this life on or about the 18th day of Sept. 1901, a resident of said county, intestate, leaving an estate not administered, and known as Sarah Blann ‘Dower Land’, consisting of 135 acres, more or less, of real and personal property of the probable value of two hundred fifty dollars, and that under the law it is necessary that said estate be administered, * * No mention was made in this petition either of the completed administration by Sarah Bland or of her death. ‘Citation having been published according to law and no objection having been offered, the Ordinary appointed Elizabeth Bland Wilson as administratrix of the estate of John Bland and issued letters of administration to her on December 22, 1924.

The inventory and appraisal filed by her listed only one item as belonging to the estate, “One hundred and thirty-five acres at Eight Dollars per acre — Value $1,080.00.” Elizabeth Bland Wilson made annual returns as administratrix for nine years, the last return being filed February 9, 1934. In 1934 Elizabeth Bland Wilson died, and on September 3, 1934, F. M.

Stewart, Jr., Clerk of the Superior Court of Jones County, Georgia, made application under Sec. 113-1307, Georgia Code to the Court of Ordinary of that county for letters of administration de bonis non on the estate of John Bland because the death of Elizabeth Bland Wilson had left the estate unrepresented and not likely to be represented, with part of it remaining yet to be administered. Accordingly, letters of administration de bonis non were issued to F. M. Stewart, Jr., who filed a petition the following year for an order authorizing the sale of the dower tract.

No objection having been filed after publication of citation, an order authorizing sale was accordingly entered, and pursuant to this order the property was sold to the United States at public auction for $626.71, the administrator giving a deed dated June 3, 1936. The heirs, except for Laconia Bland, declined to accept any part of the proceeds of the sale of this property. Accordingly, F. M. Stewart, Jr., was ordered to deposit the balance remaining in his hands in a bank, subject to the order of the Ordinary, after which letters of dismission were issued discharging him from the administration.

The case was tried in the Court below without a jury and judgment entered in favor of the defendants on the theory that the appointment of Stewart as administrator de bonis non was void because the judgment of discharge granted to Sarah Bland, the original administratrix of the estate, adjudging that such estate had been fully administered, was a final judgment which had not been vacated nor set aside, without which the Ordinary had no power thereafter to make valid appointments of administrators de bonis non, and consequently the appointment of Stewart as such administrator was void and his deed vested no title in the United States.

No debts were outstanding against the estate of John Bland, either at the time of the appointment of Elizabeth Bland Wilson as administratrix or at the time of the appointment of Stewart as administrator de bonis non, and it seems that under the law of Georgia a sale by an administrator of the reversionary interest of dower lands is illegal unless it is necessary to pay the debts of the estate.

But the main contention of the Government is that the Court of Ordinary, in the matter of the administration of estates, is a Court of general jurisdiction, and that its judgment appointing the administrator de bonis non and ordering sale of the lands cannot be collaterally attacked unless the record negatives the jurisdictional facts. Appellees also insist that this is the law, but that the rule works both ways.

It was the conclusion of the lower Court that this rule should be applied to the decree of the Court of Ordinary discharging the original administrator and adjudging that the estate had been fully administered, and that such decree, unless set aside or vacated, excluded the Court of Ordinary from the power to appoint the subsequent administrators. The lower Court’s conclusion appears to be abundantly supported by the Georgia Courts. In Phoenix Mutual Life Insurance Company v.

Daniel, 46 Ga.App. 129, 167 S.E. 117, 118, it was said: “Nevertheless, we are satisfied that it would be contrary to our law for a court of ordinary, with a valid, outstanding judgment of dismissal on record, stating that the estate had been fully administered, to render a second solemn judgment to the effect that the estate had not 'been fully administered, and that, therefore, it was necessary to appoint an administrator de bonis non to administer the unadministered part of said estate.” 113-2305 of Georgia Code Annotated provides : “Whenever an administrator or executor has fully administered the estate except the reversionary interest in the land set apart as dower, and it is not necessary to administer the same to pay debts, such administrator or executor shall be entitled to letters of dismission * * In Thompson v.

Chapeau, 132 Ga. 847, 65 S.E. 127, the Court said: “We are of the opinion that the judgment of the court of ordinary, granting letters dismissory to Chapeau as executor of the plaintiff in error was seeking to have the will of George W. Thompson, which propounded for probate in solemn form, was conclusive in his favor as against the applicant, so long as it remains of force and until set aside upon some legal and sufficient showing in proceedings instituted for that purpose in a court of competent jurisdiction.

To hold otherwise would take the judgment granting letters dismissory to an executor, after citation duly published, without the operation of the principle that a judgment rendered by a court of competent jurisdiction and regular upon its face is to be deemed conclusive until it is duly set aside.” In Summerlin v.

Floyd, 124 Ga. 980, 53 S.E. 452, Syllabus No. 1 (by the Court) reads as follows: “The construction to be placed upon the Civ.Code 1895, § 3511 (which declares that a discharge obtained by an administrator ‘by means of any fraud practiced on the heirs or ordinary is void and may be set aside on motion and proof of the fraud’), is that while the judgment of the court of ordinary discharging an administrator is open to attack on the ground that it was fraudulently procured, it is to be deemed ‘void’ only when, in a proceeding to set it aside, the proof shows it was secured by practicing a fraud upon the heirs at law or upon the ordinary.

Read in connection with the context, the term ‘void’ is to be understood as the equivalent of ‘voidable.’ See 29 Am. & Eng.Enc.L. (2d Ed.) 1068 and citations. The provisions of this

section of the code do not alter the cardinal rule that a judgment rendered by a court of competent jurisdiction, and regular upon its face, is to be deemed conclusive until it is duly set aside, either on motion in the court in which it was rendered, or in an equitable proceeding instituted in the superior court. Carter v. Anderson, 4 Ga. 516; Mobley v. Mobley, 9 Ga. [247], 249; Jacobs v. Pou, 18 Ga. 346; Cook v. Weaver, 77 Ga. [9], 10; Pollock v. Cox, 108 Ga. [430], 433, 434, 34 S.E. 213.” See also: Justices of Inferior Court of Morgan County v. Selman, 6 Ga. 432; Gilbert v.

Stephens, 106 Ga. 753, 32 S.E. 849; Knowles v. Knowles, 132 Ga. 806, 65 S.E. 128; Whitley Grocery Co. v. Jones, 128 Ga. 791, 58 S.E. 623; Dame v. McGowen, 164 Ga. 332, 138 S.E. 785, and Crow v. Martin, 66 Ga. 76, 17 S.E.2d 90, 91. As against the above contention, appellant relies on the case of Goff v.

First National Bank of Tifton, 170 Ga. 691, 153 S.E. 767, 768, wherein the Court said: “If the estate was unrepresented, the creditor should have the discharged administrator made a party, and have the judgment of discharge set aside * * *; or an administrator de bonis non should be appointed.” The Government insists that the clause “or an administrator de bonis non should be appointed” does away with the necessity of having the judgment of discharge of the former administrator set aside.

We do not believe that this clause in the opinion was intended to overrule all of the cases holding that it is necessary to have the judgment of discharge set aside. On the contrary, we think that the Court intended merely to hold that if, after the decree was set aside, the discharged administrator was not then made a party so that the estate would be represented, an administrator de bonis non should then be appointed. Such a construction would be in harmony with what seems to be the uniform decisions of the Georgia Courts on the subject.

Title to lands is often dependent upon decrees adjudging that the estates have been fully administered and that the administrator stands discharged. Especially would that be true in Georgia which has statutes providing that administrators shall not be authorized to sell lands of the estate, or to sell the reversionary interest in lands set apart as dower, except for the purpose of paying debts. Such decrees not only protect the administrator and his bondsmen from devastavits, but also those who acquire lands in reliance on the adjudication that the debts have been paid and the estate fully administered.

We agree with the lower Court that it was necessary to set aside the decree of the Ordinary wherein it was adjudged that the estate had been fully administered and that the administrator was discharged before a second or a third administrator could be appointed, without which the appointment of the administrators de bonis non were without authority and void, and that the deed from the administrator de bonis non to the United States was likewise void. The plaintiff could win only upon the strength of its own title and since it showed by its own evidence a fatal defect in its title, it cannot prevail here.

The deed from the administrator de bonis non to the United States is void for the further reason that the administrator was not in possession of the lands in question at the time of making the deed but, on the contrary, they were held adversely by heirs of John Bland. 113-1714, Code of Georgia, Annotated, Civ.Code 1910, § 4033, provides: “An administrator may not sell property held adversely to the estate by a third person ; he shall first recover possession.” In Davitte v.

Southern Railway Company, 108 Ga. 665, 34 S.E. 327, the Supreme Court of Georgia stated in its first headnote: “On the death of an intestate, title to land of which he died seised and possessed descends directly to his heirs at law. When, after his death, such heirs enter into possession of land which he owned, such possession is in their own right, and is adverse to that of an administrator subsequently appointed.

Before an administrator can legally sell the land so held, he must recover possession; and while an order of the court of ordinary directing the administrator to sell the land of the intestate is conclusive evidence of the necessity of the sale, and entitles the administrator to recover, no legal sale can be made until the recovery be first had. (

a) Where such heirs, in writing, having given to another authority to enter upon the land of which they are in possession, and to which they have such title, to lay thereon for temporary uses a railway track, the right of the person having such authority, or his assignee, will prevail over that of another who claims to have purchased the land at an administrator’s sale made while the heirs were in the adverse possession thereof.” See also Booth v. Young, 149 Ga. 276, 99 S.E. 886; Smith v. Duhart, 152 Ga. 554, 110 S.E. 301; Pickron v. Pickron, 147 Ga. 657, 95 S.E. 238; Walker v. Steffes, 139 Ga. 520, 77 S.E. 580.

It is undisputed in this case that the administrator de bonis non was not in possession of the lands at the time of the making of the deed, or at any other time, but that, on the contrary, same were in the adverse possession of the heirs of John Bland. The United States was the purchaser at the sale by the administrator and took its deed subject to whatever infirmities with which the proceedings by which it secured its claim of title were afflicted. As was said by Chief Justice Bleckley in Lowe v.

Rawlins, 83 Ga. 320, 10 S.E. 204, 6 L.R.A. 73: “The rule of caveat emptor as to all purchasers at judicial sales is not only recognized by many decisions of this court, (see McWhorter v. Beavers, 8 Ga. 300; Worthy v. Johnson, [8 Ga.] 236, [52 Am.Dec. 399]; Methvin v. Bexley, 18 Ga. 551; Colbert v. Moore, 64 Ga. 502) but is expressly declared by statute (Code § 2622).” The sale to the appellant was a judicial sale. Green v. Freeman, 126 Ga. 274, 55 S.E. 45, 7 Ann.Cas. 1069.

The judgment of the Court below is affirmed. “But the sale was void, if, at the time the authority to sell, given by this order, was exercised by the administrator, there was no necessity to sell the reversionary interest in the dower lands to pay the debts of the deceased. * * * “The Civil Code 1910, § 4094, declares that: “ ‘No administrator * * * shall be authorized to sell the reversionary interest in the land set apart as dower during the lifetime of the widow, except it be necessary to pay debts.’ ” Robinson v. Smith, 159 Ga. 269, 125 S.E. 593, text 595, 596.