Penn & Rison v. Mutual Cotton Oil Co.

32 S.E. 17, 106 Ga. 152, 1898 Ga. LEXIS 41

• Court: Supreme Court of Georgia
• Decided: December 14, 1898
• Status: Published

Opinion

Fish, J.

In this case the sole question argued here' was ■whether, under the facts, the defendants in execution had any interest in the realty levied upon, which was subject to the lien *of the judgment against them. In McDaniel v. Edwards, 56 Ga. 444, it was held thát, “After a sale of land for distribution by an executor, under an order of the court of ordinary, it .stands discharged of prior judgment liens against one of the legatees, wdiose interest therein, under the will, was one equal uindivided share with several other legatees.” In the opinion •Judge Bleckley said: “The executor had administered the land before the levy. For that purpose he was the agent of the law. Tie administered under a judgment of the court of ordinary, the <court clothed by law with jurisdiction over estates, testate and intestate. The purchaser bought the land as the property of ■.the testator, against whom there was no judgment, not as the ■property of the legatee, the judgment debtor. The title of the ■purchaser, therefore, goes back behind the lien of this judgment ;and cuts it off.” As there was no levy prior to the sale in the •case under consideration, the sanie result would follow, provided the executor had legal authority to make the sale under which the defendant in error purchased the property. If such power was given to the executor by the will, then he needed no order from the court of ordinary to sell. The will, after it was admitted to probate, was the law for the administration of the testator’s estate, and a sale by virtue of a power conferred thereby was as complete an administration of the property and passed the title to it as effectually as if made under an order of court. 'It will be seen, by reference to the terms of the will, set out in the reporter’s statement, that the executor was directed to sell .all the propertjq of every description, belonging to- the estate •of the testator; that the sale was to be either public or private, as the executor, in his best judgment, might think to the interest of the estate; and that after the debts of the testator had been paid and the special legacies turned over as indicated, it was directed that the residue of the estate should be divided between the widow, two daughters, and two' sons of the testator —naming them all — share and share alike. The executor therefore was unquestionably authorized by the will to sell this-property at private sale for the purpose of paying debts and. special legacies, and for distribution. It appeared from his undisputed testimony that the sale was made by him in good faith; that all other property had been administered; that C. H. and T. B. Watt had drawn on their interest in the estate at. different times; that there were other legatees; that this property could not be divided in kind; -that it was nepessary that, it be sold for the purpose of distribution, and for the payment-of the taxes that had been assessed against it; and that it was-sold by the executor for these purposes. The property levied on, therefore''never vested in C. EL and T. B. Watt, defendants in execution, and the lien of the judgment obtained against-them prior to the executor’s sale never attached to the property. The will put the title to it in the executor, to be disposed of in conformity to its provisions, and it remained in him until it-was duly administered, and then it belonged to the purchaser to whom he sold it. There was no error in directing a verdict-finding the property not subject.

Judgment affirmed.

All the Justices concurring, except Lumpkin,, P. /., and Little, J., absent.