Weitman, administrator, et al. vs. Thiot et al.

Supreme Court of Georgia1879-09

64 Ga. 11

Summary · law.co

Holding. The judgment is reversed because the trial court erred in instructing the jury that the debt was barred by the statute of limitations and that the administrator committed fraud in obtaining letters of administration and selling the mortgaged property. The case must be retried.

An administrator de bonis non sought to sell mortgaged land to satisfy a debt. The trial court instructed the jury that the sale was void because the administrator had fraudulently obtained letters of administration, reasoning that the underlying debt was barred by the statute of limitations under an 1869 act. The appellate court disagreed with this analysis. Although a debt obligation and mortgage originated in 1854–1855, the statute of limitations did not begin running until 1868 when the estate became unrepresented. The court calculated that five years must elapse from that suspension before the debt could be barred, plus an additional nine months and fifteen days because no administrator existed on a specified date. When letters were granted in 1872, the debt remained valid. The court also found that the administrator acted without unreasonable delay in arranging the sale nine months later, so the debt was not barred by that time either.

The trial court's charge that the administrator committed fraud in obtaining letters was also erroneous. The administrator was entitled to obtain letters to administer an honest, valid debt without needing to address whether he could have done so for a barred claim. However, the court noted that a factual dispute existed regarding whether the heirs possessed the mortgaged land adversely, which would have prevented the administrator from selling it without first suing to recover the property. Because the trial court's erroneous instructions on the statute of limitations and fraud prevented consideration of this contested factual issue, retrial was necessary.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a debt obligation was barred under the 1869 statute of limitations when letters of administration were granted in 1872
Whether the administrator fraudulently obtained letters of administration
Whether the heirs adversely possessed the mortgaged land, preventing the administrator from selling it without prior recovery action

Procedural posture

The trial court ruled against the complainants on the basis of an erroneous charge regarding the statute of limitations and alleged fraud, and the appellate court reversed for retrial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Jackson, Justice.

The court instructed the jury in this case that the sale by the administrator de bonis non was void, because he had obtained the letters and the order to sell fraudulently, in this, that the debt due to the church was barred when the letters were granted in 1872 — barred by the act of 1839. The bond and mortgage were executed in 1854 and matured in 1855; the maker died in 1861 and letters were granted to* his father, who died in 1864; thence to 1872 there was uoadministration ; henee, in the judgment of the court below, the bond was barred by the limitation act of 1869. Even if it were so barred, it would seem that the grant of letters would have been good if taken out to pay an honest debt y or, at any rate, that the ordinary had adjudicated that question, and that the letters of administration, not having been got by fraudulent or false representations of any sort, would stand until revoked by the court which granted them.

However that, may be (and it is not necessary to decide it in this case), were the bond and mortgage given by the intestate in 1854 and due in 1855 barred by the act of 1869 ?. We think not. The statute of limitations was suspended in 1868, and only then it could begin again to run. The estate was then unrepresented, and the bar would not attach until five^years more had expired; because the period of five years is allowed from the close of the administration first granted to the beginning of that de bonis non by our statute. Code, §2928. To this, as there was no administrator to sue on the 1st of January, 1879, nine months and fifteen days should be added from the expiration of five years after July, 1868. 55 Ga., 85. So that it is very clear that when administration was granted in 1872, this debt was not barred, and therefore the court was wrong in the charge which pronounced it barred. ’ And the creditor had a clear right to administer without considering or deciding whether he could have done so to secure a barred debt.

But the sale did not take place until nine months and fifteen days after the grant of administration de bonis non, so that it may be asked why was not the debt barred when the sale took place and the proceeds were applied to the debt? The answer is, because the administrator could not sue himself, and masinuch as he was one of the trustees ■who held the legal title in common with others, the spirit of the decision in 57 Ga., 568, would apply, and the debt would not be barred while he was trying to sell and have it paid, and not unreasonably delaying the matter. The facts show that he pressed the matter as rapidly as was practicable, and was guilty of no laches. Therefore the bond and mortgage were not barred in equity when the sale took place.

It is clear that the lands, if held and possessed by the heirs adversely, cannot be sold by the administrator until he sues and recovers them. Code, §§2564, 2483, 2486 56 Ga., 430.

But that is a contested point on the facts, and while the court charged the law thereon, and that was the real issue in the case, yet the charge of the bar of the statute and fraud of the administrator concluded the case for complainants without reference to this issue ; and therefore the case must be tried over again. The charge in respect to the extent of possession by construction when the party actually possesses part, is right, as we understand it. The law is-that it extends as far as the boundary of the tract described in the deed, if recorded, or if the boundaries are known to-the contesting party.

There was no error in admitting the deeds which were over thirty years old, they appeared genuine, and came from-the proper custody. Code, §2700.

The judgment is reversed on the ground that the court erred in the charge in respect to the debt being barred and fraud in the administrator in taking out letters and selling; the land mortgaged to pay it.

Judgment reversed.