Candler, Thomson & Hirsch, of Atlanta, for as the administrator's intestate had only

plaintiff in error. Napier, Wright & Cox, of Atlanta, for defendant in error.

HILL, J. Judgment affirmed. Justices concur.

(140 Ga. 217)

HOLMES v. HOLMES. (Supreme Court of Georgia. July 15, 1913.)

(Syllabus by the Court.)

1. EXECUTORS AND ADMINISTRATORS (§ 373*)SALES-ACTION AGAINST BIDDER-DEFENSES -MISTAKE OF LAW.

A mutual mistake of law is a good defense against an action to recover money, under contract of purchase, where there is full knowledge of all the facts, provided the mistake be clearly proved and the plaintiff cannot in good conscience receive the money sued for.

title to a part of the lot of land, and that for this reason he is relieved from liability for the purchase money of the land, and the All the sale is invalid. It appeared at the trial that James C. Holmes and his wife owned a lot of land. Mrs. Holmes died before her husband, and upon the death of Mr. Holmes, the defendant, who was a son, contracted to buy the shares of his codistributees in the land. He took conveyances from several of them, and, as some were minors, an administration was deemed necessary in order that the defendant might acquire a complete title. Accordingly a son, J. D. Holmes, applied for letters of administration on the estates of his father and mother in one petition. The defendant submitted evidence that, on the day letters of administration were granted, the ordinary, acting on the advice of an attorney of the applicant that upon the death of Mrs. Holmes all her estate in the land passed by inheritance to her husband, to the exclusion of her children, issued letters of administration only upon the estate of James C. Holmes to J. D. Holmes, who duly qualified as administrator. The administrator applied for leave to sell the land of his intestate, the order was duly granted, and the land was advertised and sold as the land of James C. Holmes, and was bid off by the defendant. Since the sale the defendant has acquired the interests of all the heirs except that of the minors, who own the interest of their father, a deceased son of Mr. and Mrs. J. C. Holmes. The administrator and the defendant at the time of the sale were fully informed of the respective ownership of James C. Holmes and his wife in the land,

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1519-1527; Dec. Dig. & 373.*]

2. EXECUTORS AND ADMINISTRATORS (§ 367*)ADMINISTRATOR'S SALE-ACTION AGAINST BIDDER-DEFENSES-MISTAKE OF LAW.

A husband and wife owned a tract of land in common. The wife died, leaving her husband and eight children as her heirs at law. Subsequently the husband died. The adult heirs agreed to sell to one of their number their respective shares; but, as one of the shares was owned by the minor children of a deceased heir, it was agreed that one of the heirs should administer upon both estates and sell the land at administrator's sale for the purpose of investing the purchaser with a good title to the whole. Accordingly application was made to the ordinary for administration on both estates. The attorney for the applicant and the ordinary were of the opinion, and so advised, that upon the death of the wife her estate in the land passed to the husband as sole heir, and, acting on this mistake of law, administration was had upon the estate of the husband alone. order of sale was granted, and the heir who and that Mrs. Holmes died about three had contracted to buy became the purchaser at years before her husband, leaving eight chiladministrator's sale, bidding upon the land un-dren, including the administrator and the der the mistake of law and the representation defendant. The administrator testified that of the administrator, who was a coheir, that the title of both parents would pass to the purchaser by virtue of the sale. Afterwards the purchaser discovered the mistake of law under which he acted, and refused to pay his bid. In an action by the administrator to recover the amount of the bid, held that a verdict for the defendant was proper.

An

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1545-1549; Dec. Dig. § 367.*]

Error from Superior Court, Dade County; A. W. Fite, Judge.

he did not have sufficient money to discharge the debts of his intestate without a sale of the land (the amount of the debts did not appear, though the inference was that they were not large); that he offered the land for sale as being the sole property of his intestate, but it was his understanding that his intestate owned but 19/26 of the land; that by an arrangement with the defendant he had accepted $500 for his share in the land. The estate was worth more than the amount Action by J. D. Holmes, administrator, at which the adult heirs had agreed to sell against Wm. Holmes. Judgment for defend-it to the defendant, and the administration ant, and plaintiff brings error. Affirmed. was had solely for the purpose of perfecting The action is by an administrator against the highest bidder at an administrator's sale of land, to recover the amount of the bid. The defendant pleaded that he had bid upon the land upon the representation of the administrator, and under a mistake of law induced by him, that his intestate owned the land, and that the administrator had the EVANS, P. J. (after stating the facts as right to sell and convey the entire lot, where- above). [1] The disposition of this case de

title and protecting the minor heirs. Upon the conclusion of the evidence the court directed a verdict for the defendant.

Foust & Payne, of Chattanooga, Tenn., for plaintiff in error. W. U. Jacoway, of Trenton, for defendant in error.

private agreements to divest the title of minors in property in pursuance of such agreement, whether made with the minors themselves or with others who have the minors' interest at heart. The policy of the law is that sales where the interest of minors is involved, under judicial process, shall be unfettered by any private arrangement. The minors are entitled to their share of the land at the price fixed by a sale pursuant to the statute. Likewise creditors are interested in having a sale of the property of their decedent free from any entanglements growing out of a private arrangement among heirs that the property should bring a specific price at the sale. It is therefore no argument in favor of the collection of a bid made at an adminstrator's sale, under a mistake of law, that the sale was pursunt to an arrangement to which the bidder was a party having for its purpose the divestiture of the title of the heirs of the intestate to the property offered for sale.

The rule is the same respecting purchases at sheriffs' sales as it is at adminstrators' sales. We have a case of an execution sale, where the purchaser thereat was a mortgagee whose lien was superior in date to the judgments under which the property was sold. He purchased the property under a mistake of law that the effect of the sale would be to divest the lien of his mortgage and entitle him to participate in the proceeds. His com

pends upon a decision whether or not its facts bring it within the rule that, under the doctrine of caveat emptor, a purchaser at an administrator's sale cannot repudiate his bid because of a defective title, or want of title in the decedent. The principle of caveat emptor has never been carried to the extent that a purchaser at an administrator's sale is not relievable against the fraud or misrepresentation of an administrator. If an administrator is guilty of imposition, and the purchaser is influenced in making his bid on account of the fraud or misrepresentation of the administrator, he is relievable of his bid. Colbert v. Moore, 64 Ga. 502; Jones v. Warnock, 67 Ga. 484; Kingsbery v. Love, 95 Ga. 543, 22 S. E. 617. If the administrator had been guilty of such conduct as to induce the purchaser to bid upon the faith that his intestate was the owner of the whole fee, and knew that such bidding was made under such misapprehension, it would be inequitable for him to hold the purchaser to a bid induced by his own misrepresentation. There is no pretense, however, in the present case that the administrator has been guilty of any intentional fraud or misrepresentation. The parties seem to have acted with a full knowledge of all the facts, but under a misapprehension of the law as applied to these facts. There was a conference among the children of Mr. and Mrs. Holmes. One of the children desired to purchase the land. A price was agreed upon. In the nepetitive bidder was laboring under the same gotiations all parties conceded that the minor children of the deceased brother were entitled to his share, and that their interest could not be conveyed on account of their minority. To meet this difficulty in the matter of conveyance of title, an administration upon the estates of Mr. and Mrs. Holmes was deemed necessary. Accordingly, the eldest brother was selected to apply for administration on both estates, with a view of obtaining an order to sell the land at administrator's sale in effectuation of the agreement among the adult heirs. Application was made to the ordinary pursuant to this arrangement; but it appears that both the applicant's attorney and the ordinary labored under a misapprehension of law that upon the death of Mrs. Holmes her entire estate was inherited by her husband to the exclusion of her children, and it was upon this assurance by the ordinary and attorney for the applicant that administration upon the estate of Mrs. Holmes was abandoned, and letters granted upon the estate of Mr. Holmes. There is no dispute that this sale was planned and made solely for the purpose of perfecting title of the prospective bidder. At the time of the suit the bidder was in possession of the land, having purchased the interests of the adult heirs of his father and mother. Some of these purchases were made prior to the sale and some afterwards.

mistake of law. Immediately after the land was knocked off, he was apprised of his mistake, and notified the sheriff that he would not comply with his bid. The land was immediately resold, and the sheriff, for the use of the defendant in execution, brought suit against him to recover the difference in the two sales. The court denied him a recovery, on the principle that a mistake of law is a good defense against an action to recover money, provided the mistake is clearly proved, and the plaintiff cannot in good conscience receive the money. Collier v. Perkerson, 31 Ga. 117.

[2] This is not a case where the purchaser simply bids upon property exposed to public sale by the administrator on the assumption that the title of the administrator's intestate is good; nor is it a case where he relied entirely upon the personal assurance of the administrator that the title of his intestate was good. Other elements enter into it. It is a family arrangement, entered into by all the parties who were able to contract, and the bid by the defendant in the execution of such plan was made under a mistake of law, induced by the plaintiff's counsel and the ordinary, that the husband inherited the wife's estate, to the exclusion of the children. it would be inequitable to allow the heirs of Mrs. Holmes to have her interest in the land administered upon and sold for distribution

Now

party.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066;* Boundaries, Cent. Dig. §§ 253-260, 262, 263; Dec. Dig. § 52.*]

4. APPEAL AND ERROR (§ 1066*) - HARMLESS ERROR-INSTRUCTION-PROCESSIONING PRO

CEEDINGS.

already received their, share of the purchase [ of the court on adverse possession for 20 years price of the entire land. The minor children as giving a prescriptive title may have been of the deceased child of Mr. and Mrs. Holmes inapplicable, it was not injurious to the losing will not be hurt, because the undisputed testimony is that the land is worth as much or more than the amount which was paid for it at the administrator's sale. It would be inequitable to allow them to have the benefit of a portion of the land as being the property of their grandmother's estate, and also receive their share of the proceeds of the entire tract as being the property of their grandfather. Neither does it appear that the creditors of James C. Holmes will sustain any loss; for, while the amount of the debts is not made to appear, yet the inference is strong that they are of very small value. It does not appear that Mrs. Holmes owed any debts at all. So that, under all the circumstances, we believe that the sale was made under a mutual mistake of law, participated in by the administrator and the bidder, and that it would be inequitable to require compliance with the bid. Civil Code, § 4576.

Civ. Code 1910, § 3819, which declares that, when the surveyor's plat shall be filed with the ordinary, in all future disputes arising in reference to the boundary lines of the tract surveyed, such plat shall be considered prima facie correct, is inapplicable to the issue before the court formed by a protest to the section in charge was not prejudicial to the processioners' return. But the giving of this losing party, because in the trial of an issue formed by a protest the return of the processioners is to be deemed prima facie correct. Error, Cent. Dig. § 4220; Dec. Dig. & 1066.*] [Ed. Note.-For other cases, see Appeal and 5. TRIAL ( 210*)-INSTRUCTIONS-WITNESSES. As it was not sought to impeach any witness by evidence introduced for that purpose, it was not error to instruct the jury: "The law presumes all witnesses are honest, and tell the truth, until the contrary appears by

Judgment affirmed. All the Justices con- proof."

cur.

(140 Ga. 245)

GEORGIA TALC CO. v. COHUTTA TALC

CO.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 490-494, 501; Dec. Dig. § 210.*] 6. ESTABLISHMENT OF BOUNDARY.

Other assignments of error are without merit, and the evidence supports the verdict.

Error from Superior Court, Murray Coun

(Supreme Court of Georgia. July 16, 1913.) | ty; A. W. Fite, Judge.

2. TRIAL (8 296*)-PROCESSIONING PROCEEDINGS INSTRUCTIONS-ADVERSE POSSESSION.

Processioning proceedings by the Georgia Talc Company against the Cohutta Tale Company. The applicant, being dissatisfied with the return of the processioners, protested, and the papers were returned to the superior court for trial. The jury sustained the return of processioners, and from the judgn ent the applicant brings error. Affirmed.

W. E. Mann, of Dalton, for plaintif in error. C. N. King, of Spring Place, for lefendant in error.

EVANS, P. J. The Georgia Talc Comp ny and the Cohutta Tale Company own adj. in

The statute provides that land processioners, in the location of the line between coterminous landowners, shall follow certain rules, one of which is that acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line, and another is that actual possession under a claiming lots of land. The former gave notice to of right for more than seven years shall be re- the latter, in order to have the line between spected, and the lines so marked as not to in- the respective lots processioned in accordance terfere with such possession. An instruction with the statute. The processioners caused applying these rules was not cause for new trial, because the court referred to the time of the land to be surveyed and a plat of the acquiescence and actual possession as "a term same made by the county surveyor, which of years as the law prescribes" and "a number plat was returned by them pursuant to the of years," where in immediate connection therewith he also instructed the jury, in the statute and filed in the office of the ordinary. language of Civil Code 1910, §§ 3821, 3822, that The applicant, being dissatisfied with the line such acquiescence or actual possession must as run and marked by the processioners and exist for seven years. The evidence authorized surveyor, filed his protest, and the papers the charge complained of. were returned to the superior court for trial. The jury sustained the return of the proces

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 705-713, 715, 716, 718; Dec. Dig. § 296.*]

3. APPEAL AND Error (§ 1066*)-BOUNDARIES ($ 52*)-HARMLESS ERROR-PROCESSIONING PROCEEDINGS-NATURE.

The issue formed by a protest is not of title, but of boundary; and though the charge

sioners.

[1] 1. The court ruled that the burden of proof was upon the applicant. This ruling is sustained by the decisions in Rattare v. Morrow, 71 Ga. 528, and Chism v. Wilkerson, 134 Ga. 636, 68 S. E. 425. In the former case

Hall, J., said: "There is no direct rule upon the subject, and no reason occurs to us why the applicant for the proceeding is differently situated from any other plaintiff or movant in respect to this question. Where there is evidence on both sides, the plaintiff has the right to open and conclude the argument."

[2] 2. Complaint is made of an instruction that if the jury should find that the line had been acquiesced in by the owners of the adjoining land for a number of years, or if the Cohutta Talc Company had actual possession of the land between the two lines for a term of years as the law prescribes, they should find against the protest. The criticism is that the jury were not told the term or number of years necessary to fix a line by acquiescence or actual possession. This particular excerpt is open to such criticism, but in immediate connection therewith the court read to the jury the Code provisions as follows: * Acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line." "Where actual possession has been had under a claim of right, for more than seven years, such claim shall be respected, and the lines so marked as not to interfere with such possession." Civil Code, §§ 3821, 3822. There was evidence to authorize the charge, both upon acquiescence and actual possession.

the processioners' return. They serve to make out a prima facie case, and, in the absence of any other evidence, would authorize a verdict sustaining the return. Castleberry v. Parrish, 135 Ga. 527, 69 S. E. 817. Inasmuch as their introduction in evidence makes a prima facie case, the giving in charge of the section referred to was harmless error.

[5] 5. There was no attempt to impeach any witness by evidence introduced for that purpose. The court charged that "the law presumes all witnesses are honest, and tell the truth, until the contrary appears by proof." This charge was not erroneous. Cornwall v. State, 91 Ga. 277 (5), 18 S. E. 154; 40 Cyc. 2555.

[6] 6. There are other assignments of error; but we do not think they are of such a character as to require a new trial. They involve propositions which are well settled, and a discussion of them would be without any practical benefit. The evidence was sufficient to authorize the verdict, and no sufficient reason is made to appear for vacating it. Judgment affirmed. All the Justices con

cur.

(140 Ga. 353)

MAYOR, ETC., OF SAVANNAH v. STAND-
ARD FUEL SUPPLY CO.

(Supreme Court of Georgia. July 19, 1913.)
(Syllabus by the Court.)

TION.

[3] 3. The primary object of our processioning laws is to settle disputes of boundary lines between coterminous landowners. It is a summary proceeding, and is not designed to be a substitute for an action of ejectment. 1. DEDICATION (§ 15*) - STREETS Title is not directly involved. In the instant case the court read to the jury certain sections of the Code relating to adverse possession as constituting prescription. While these sections may have been inapplicable to the case, we do not think the losing party was injured by the court's reading them to the jury.

[4] 4. Civil Code, § 3819, declares it to be the duty of the county surveyor to make out and certify a plat of the lines as run by him and the processioners, and to deliver a copy thereof to the applicant, and that "in all future disputes arising in reference to the boundary lines of such tract, with any owner of adjoining lands, having due notice of such processioning, such plat, and the lines so marked, shall be prima facie correct, and such plat ♦ shall be admissible in evidence, without further proof." The subject-matter of this section is the effect to be given to a plat made by the surveyor under the superintendence of the processioners, and filed as provided by law, in subsequent disputes between the coterminous landowners. It is inapplicable to the issue formed by a protest to the correctness of the plat. The return of the processioners and the plat of the surveyor are admissible in evidence in the trial of an issue formed by a protest to

for a street rests upon the intent of the owner Dedication to the public of a use of land to make such dedication. Where the dedication is not express, the acts of the owner relied upon to imply a dedication must be such as clearly indicate an intent to exclusively devote the property to use as a street.

[Ed. Note. For other cases, see Dedication, Cent. Dig. § 13; Dec. Dig. § 15.*] 2. DEDICATION (§ 20*) - USER BY PUBLIC WHARF PROPERTY.

Wharf property on a navigable stream is the public are invited. The fact that, without a place of a quasi public character, to which intent to make a dedication, the wharf owner permits its use by some of the public, who do not come thereon for the purpose of transacting business, should not operate to defeat his title. In the absence of proof of express dedication and acceptance, such use by the public will be regarded in the nature of a license, and, of itself, will be insufficient to raise an application of its dedication as a street by the owner.

[Ed. Note.-For other cases, see Dedication, Cent. Dig. §§ 17-30; Dec. Dig. § 20.*] 3. MUNICIPAL CORPORATIONS (8 648*) STREETS-ACQUISITION OF TITLE-WHARF

PROPERTY.

In such a case, where the wharf owner retains dominion over and use of the dockyard, although he may permit the public to travel over it as if it was a part of the street longitudinally adjacent thereto for upwards of 20 years, such use by the public is so lacking in the elements of adverseness and exclusiveness as

to be insufficient to establish a prescriptive | to John David Mongin, in 1821, from whom right thereto. the defendant derives his title, does not in[Ed. Note.-For other cases, see Municipal dicate any street along the bluff. In the Corporations, Cent. Dig. §§ 1421, 1422; Dec. Dig. § 648.*]

Error from Superior Court, Chatham Coun-line 88 feet and 4 inches, leaving back of ty; W. G. Charlton, Judge.

him from so doing on the ground that he was years ago it paved the locus in quo; that over obstructing a public street. On the trial a nonsuit was refused, and after all the evi-road track over the disputed territory under 20 years ago a railroad company built a raildence was in the court directed a verdict for permission from the city to lay it on River