Sanders v. Whaley

131 S.E. 176, 161 Ga. 401, 1925 Ga. LEXIS 364

• Court: Supreme Court of Georgia
• Decided: December 17, 1925
• Docket: No. 4903
• Status: Published

Opinion

Gilbert, J.

1. The court did not err in repelling from the evidence the deed from the administrator of W. J. Sanders to Mrs. W. J. Sanders, Rebecca and Mary Sanders, there being no order of court showing authority for such conveyance. Clements v. Henderson, 4 Ga. 148 (48 Am. D. 216); Roberts v. Martin, 70 Ga. 196; Waller v. Hogan, 114 Ga. 383 (40 S. E. 254).

2. The first two demises were laid in W. J. Sanders, who died before the filing of the suit. The remaining demise was laid in Whaley and Taylor. In an action in ejectment in the common-law form a recovery can not be had on a demise laid in one who is dead at the time the suit is brought. “If the plaintiff desires to take advantage of the title which a deceased person held at the time of his death, he must lay the demise in the name of the heirs at law, devisee, or personal representative, as the case may be; or, what is safer, he may lay separate demises in the names of all of them.” Powell on Actions for Land, § 24; Brown v. Colson, 41 Ga. 42; Boynton v. Brown, 67 Ga. 396; Bagley v. Kennedy, 85 Ga. 703 (11 S. E. 791); Wolfe v. Baxter, 86 Ga. 706 (13 S. E. 18); Priester v. Melton, 123 Ga. 376 (51 S. E. 330). If it be conceded that title was shown in Whaley and Taylor, none was shown out of them and into the plaintiffs in this case. Though the bill of exceptions and the brief of plaintiffs in error would indicate that demises were laid in Mrs. W. J. Sanders and her daughters, Rebecca and Mary, an inspection of the record shows this to be incorrect. In such a casé the record must control.

3. The court did not err in granting a nonsuit.

Judgment affirmed.

All the Justices concur. Hendricks & Hendricks, for plaintiffs. C. L. Smith and J. J. Murray, for defendants.