Ward v. McDonald

69 S.E. 817, 135 Ga. 515, 1910 Ga. LEXIS 17

• Court: Supreme Court of Georgia
• Decided: December 15, 1910
• Status: Published

Opinion

Beck, J.

1. Under the law of this State a temporary administrator can not institute and maintain an action for the recovery of land held adversely to the estate. Banks v. Walker, 112 Ga. 542 (37 S. E. 866).

December 15, 1910.

Equitable petition. Before Judge Seabrook. Liberty superior court. September 20, 1909.

P. W. Meldrim and Edwin A. Cohen, for plaintiff in error. A. S. Way and James R. Thomas, contra.

2. Where a temporary administrator brought suit, alleging in his petition that the defendant was in possession of a certain tract of land and claimed to be the owner thereof under and by virtue of a sheriff’s deed, and alleging that said' deed was invalid because of accident and mistake on the part of the sheriff who executed the same, and that this mistake was known by the purchaser at the time of tendering the defendant-the purchase-money paid by him, and praying that the latter be required to account to petitioner for rents, issues, and profits which he had received from the lands, and that title to the land be decreed to be in petitioner as administrator, such an. action fell within the ruling made in the decision of this court above referred to, and could not be instituted or maintained by a temporary administrator.

3. The temporary administrator being without authority to institute such an action, the petition could not be amended by substituting the name of one who sued as permanent administrator and who was appointed such after the commencement of the action, although the person who brought the suit as temporary administrator was the same person who was after-wards made permanent administrator.

Judgment affirmed.

All the Justices concur.