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Ga.,2010.
Witcher v. JSD Properties, LLC
286 Ga. 717, 690 S.E.2d 855, 10 FCDR 727 Supreme Court of Georgia.
WITCHER
v.
JSD PROPERTIES, LLC et al. (two cases)
Nos. S10A0053, S10A0054.
March 15, 2010.
Background: Administrator of beneficiary's estate brought action to quiet title and for damages, alleging that ad-
ministrator of testator's estate breached his fiduciary duties in selling properties to third party that were devised to
beneficiary in testator's will. The Superior Court, DeKalb County, Linda Warren Hunter, J., granted summary judg-
ment in favor of subsequent purchaser of properties. Beneficiary's administrator appealed.
Holding: The Supreme Court, Carley, P.J., held that purchaser was bona fide purchaser without notice, and thus
transfer of property was valid.
Affirmed.
West Headnotes
[1] Executors and Administrators 162 388(5)
162 Executors and Administrators
162VIII Sales and Conveyances Under Order of Court
162VIII(C) Sale
162k388 Title and Rights of Purchasers and Their Privies
162k388(5) k. Bona fide purchasers. Most Cited Cases
Subsequent purchaser of property that was subject to will was bona fide purchaser without notice, and thus transfer
of property was valid, despite lack of notice to beneficiary of will; probate court's order granting authority to sell the
property was valid on its face, intermediate third party was not an agent of purchaser such that notice of the circum-
stances would have been imputed to purchaser, and purchaser did not take any action purposely and with malice and
intent to injure. West's Ga.Code Ann. § 53-5-16(b).
[2] Executors and Administrators 162 383
162 Executors and Administrators
162VIII Sales and Conveyances Under Order of Court
162VIII(C) Sale
162k383 k. Collateral attack. Most Cited Cases
An order of a probate court granting the authority to sell land of the estate may not be collaterally attacked if the
order is valid on its face.
as successor administrator. The superior court granted summary judgment in favor of JSD and Bell (Appellees) on
1. “As to heirs not effectively notified, a proceeding to probate in solemn form shall ... be as conclusive as if probate
had been in common form.” OCGA § 53-5-20. Thus, “[b]ona fide purchasers without notice under legally made
sales from the executor will be protected.” OCGA § 53-5-16(b). Citing Pound v. Faulkner, 193 Ga. 413, 418(4), 18
S.E.2d 749 (1942), Appellant argues that Appellees did not meet their burden of proving payment by JSD merely by
[1][2] The undisputed evidence shows that, prior to the sale to JSD, neither Jordan nor Appellant communicated
with Appellees, and neither Cooper nor Smith told them that Appellant had a claim to the property. Appellant ar-
gues, however, that the title report put Appellees on at least inquiry notice of irregularities in the titles to the proper-
ministration in Ga., § 6:15, p. 271 (7th ed. 2008). Likewise, “[a]n order of a probate court granting ... the authority
to sell land of the estate may not be collaterally attacked if the order is valid on its face. [Cit.]” Lyday v. Burkes, 261
Ga. 465, 466(1), 405 S.E.2d 472 (1991).
latter shall be protected.” OCGA § 23-1-19. Indeed, “[f]raud between the executor and his immediate grantee will
not affect subsequent purchasers for value who derived title through the deed of the executor bona fide and without
any notice of the alleged fraud. [Cit.]” Wood v. Bowden, 182 Ga. 329(4), 185 S.E. 516 (1936).
6-58.
The principal is bound by notice to his agent, for the same reason and to the same extent that he is bound by the
act of his agent. In both cases it must be limited to matters within the scope of the agency.... [W]hen the agent de-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
parts from the scope of the agency, and begins to act for himself and not for the principal; when his private inter-
est is allowed to outweigh his duty as a representative; when to communicate the information would prevent the
accomplishment of his fraudulent scheme, he becomes an opposite party, not an agent. The reason for the rule
then ceases. Where, therefore, the agent who is an intermediary is guilty of independent fraud for his own benefit,
the law does not impute to the principal notice of such fraud. Instead of being communicated, it would be pur-
posely and fraudulently concealed.
Hodgson v. Hart, 165 Ga. 882, 887, 142 S.E. 267 (1928). Thus, assuming that Smith acted as agent for Appellees in
filing the affidavit seeking a dispossessory warrant prior to JSD's purchase of the properties, such evidence does not
[8] Appellant also argues that Savant acted as agent for JSD because Savant agreed to sell the properties before it
had title and, with JSD's approval and knowledge, Savant obtained the properties for JSD. However, “[t]he authority
of an agent in a particular matter can not be established by evidence that he performed acts as agent in that matter.”
Kiker v. Anderson, 226 Ga. 121, 124(3), 172 S.E.2d 835 (1970). The fact that Savant and JSD entered into contracts
Williams v. Bell, 126 Ga.App. 432(1), 190 S.E.2d 818 (1972).
3. The sales by Cooper and Savant divested Appellant of title in the properties and are not voidable as to JSD, who
is undisputedly an innocent purchaser for value. Lyday v. Burkes, supra. Even assuming that genuine issues of mate-
Systems, 294 Ga.App. 340, 344-345(1), 669 S.E.2d 168 (2008). Accordingly, the superior court correctly granted
summary judgment in favor of Appellees.
Judgment affirmed.
END OF DOCUMENT
as successor administrator. The superior court granted summary judgment in favor of JSD and Bell (Appellees) on
1. “As to heirs not effectively notified, a proceeding to probate in solemn form shall ... be as conclusive as if probate
had been in common form.” OCGA § 53-5-20. Thus, “[b]ona fide purchasers without notice under legally made
sales from the executor will be protected.” OCGA § 53-5-16(b). Citing Pound v. Faulkner, 193 Ga. 413, 418(4), 18
S.E.2d 749 (1942), Appellant argues that Appellees did not meet their burden of proving payment by JSD merely by
[1][2] The undisputed evidence shows that, prior to the sale to JSD, neither Jordan nor Appellant communicated
with Appellees, and neither Cooper nor Smith told them that Appellant had a claim to the property. Appellant ar-
gues, however, that the title report put Appellees on at least inquiry notice of irregularities in the titles to the proper-
ministration in Ga., § 6:15, p. 271 (7th ed. 2008). Likewise, “[a]n order of a probate court granting ... the authority
to sell land of the estate may not be collaterally attacked if the order is valid on its face. [Cit.]” Lyday v. Burkes, 261
Ga. 465, 466(1), 405 S.E.2d 472 (1991).
latter shall be protected.” OCGA § 23-1-19. Indeed, “[f]raud between the executor and his immediate grantee will
not affect subsequent purchasers for value who derived title through the deed of the executor bona fide and without
any notice of the alleged fraud. [Cit.]” Wood v. Bowden, 182 Ga. 329(4), 185 S.E. 516 (1936).
6-58.
The principal is bound by notice to his agent, for the same reason and to the same extent that he is bound by the
act of his agent. In both cases it must be limited to matters within the scope of the agency.... [W]hen the agent de-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
parts from the scope of the agency, and begins to act for himself and not for the principal; when his private inter-
est is allowed to outweigh his duty as a representative; when to communicate the information would prevent the
accomplishment of his fraudulent scheme, he becomes an opposite party, not an agent. The reason for the rule
then ceases. Where, therefore, the agent who is an intermediary is guilty of independent fraud for his own benefit,
the law does not impute to the principal notice of such fraud. Instead of being communicated, it would be pur-
posely and fraudulently concealed.
Hodgson v. Hart, 165 Ga. 882, 887, 142 S.E. 267 (1928). Thus, assuming that Smith acted as agent for Appellees in
filing the affidavit seeking a dispossessory warrant prior to JSD's purchase of the properties, such evidence does not
[8] Appellant also argues that Savant acted as agent for JSD because Savant agreed to sell the properties before it
had title and, with JSD's approval and knowledge, Savant obtained the properties for JSD. However, “[t]he authority
of an agent in a particular matter can not be established by evidence that he performed acts as agent in that matter.”
Kiker v. Anderson, 226 Ga. 121, 124(3), 172 S.E.2d 835 (1970). The fact that Savant and JSD entered into contracts
Williams v. Bell, 126 Ga.App. 432(1), 190 S.E.2d 818 (1972).
3. The sales by Cooper and Savant divested Appellant of title in the properties and are not voidable as to JSD, who
is undisputedly an innocent purchaser for value. Lyday v. Burkes, supra. Even assuming that genuine issues of mate-
Systems, 294 Ga.App. 340, 344-345(1), 669 S.E.2d 168 (2008). Accordingly, the superior court correctly granted
summary judgment in favor of Appellees.
Judgment affirmed.
END OF DOCUMENT
