Sellars v. Cheney

Supreme Court of Georgia

Sellars v. Cheney

70 Ga. 790

CourtSupreme Court of Georgia

DecidedSeptember 25, 1883

StatusPublished

Cited by3 cases

This text of 70 Ga. 790 (Sellars v. Cheney) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sellars v. Cheney, 70 Ga. 790 (Ga. 1883).

Pincite

Opinion

Jackson, Chief Justice.

The questions made in this record and pressed here mainly by the plaintiff in error are, first, that possession in defendant in the ejectment case was not proved; secondly, that the administrator could not sue unless he brought himself within section 2486 of the Code, and showed either prior possession, or that the recovery was necessary to pay debts or make proper distribution; thirdly, estoppel; and fourthly, the evidence necessary to prove and identify a summons to a justice court so a's to admit it in the evidence.

1. When the defendant put in his defence to the action, the law and rule of court required him to admit possession.

2. Section 2486 of the Code, applies to suit by the administrator against heirs or those holding under heirs. Sellars, the defendant here, was neither an heir nor did he hold under one.

3. The estoppel is not good under the facts. It is based on the idea that the former administratrix stood by and saw the sale under the void fi.fa., and thereby the administrator de bonis non is estopped from attacking its invalidity. Even if an administrator sells illegally as an individual he is not estopped as administrator; certainly then he will not be, if the preceding administratrix sees the sheriff sell illegally and says nothing. 57 Ga., 425; Section 2966 of Code, and 59 Ga., 171, are not applicable.

4. The constable who served the summons, and the justice of the peace who succeeded him who issued it in that office, may prove and identify it, and the justice of the peace who issued it need not be called. The constable who served it certainly knew as much about it as the justice who issued it for service. -

[794]*7945. The justice court was illegally 'held, under the constitution of 1868, and the judgment and fi.fa. and sale were void; the court being held not in the time prescribed by la,w, was no court. 56 Ga., 283; 59 Ib., 533, 603; 60 Ib., 631, 466; 65 Ib., 557.

6. Where plaintiff and defendant both hold under a common grantor, the title in him need not be proved. 54 Ga., 689; 55 Ib., 613.

7. The verdict is right.

Judgment affirmed.

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Jackson, Chief Justice.

The questions made in this record and pressed here mainly by the plaintiff in error are, first, that possession in defendant in the ejectment case was not proved; secondly, that the administrator could not sue unless he brought himself within section 2486 of the Code, and showed either prior possession, or that the recovery was necessary to pay debts or make proper distribution; thirdly, estoppel; and fourthly, the evidence necessary to prove and identify a summons to a justice court so a's to admit it in the evidence.

1. When the defendant put in his defence to the action, the law and rule of court required him to admit possession.

2. Section 2486 of the Code, applies to suit by the administrator against heirs or those holding under heirs. Sellars, the defendant here, was neither an heir nor did he hold under one.

3. The estoppel is not good under the facts. It is based on the idea that the former administratrix stood by and saw the sale under the void fi.fa., and thereby the administrator de bonis non is estopped from attacking its invalidity. Even if an administrator sells illegally as an individual he is not estopped as administrator; certainly then he will not be, if the preceding administratrix sees the sheriff sell illegally and says nothing. 57 Ga., 425; Section 2966 of Code, and 59 Ga., 171, are not applicable.

4. The constable who served the summons, and the justice of the peace who succeeded him who issued it in that office, may prove and identify it, and the justice of the peace who issued it need not be called. The constable who served it certainly knew as much about it as the justice who issued it for service. -

[794]*7945. The justice court was illegally 'held, under the constitution of 1868, and the judgment and fi.fa. and sale were void; the court being held not in the time prescribed by la,w, was no court. 56 Ga., 283; 59 Ib., 533, 603; 60 Ib., 631, 466; 65 Ib., 557.

6. Where plaintiff and defendant both hold under a common grantor, the title in him need not be proved. 54 Ga., 689; 55 Ib., 613.

7. The verdict is right.

Judgment affirmed.

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Bluebook (online)

70 Ga. 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sellars-v-cheney-ga-1883.

Opinion

7. The verdict is right.

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