Askew v. Amos

• Decision Date: 12 February 1918
• Docket Number: 345.
• Citation: 95 S.E. 5,147 Ga. 613
• Parties: ASKEW v. AMOS.
• Court: Georgia Supreme Court

95 S.E. 5

147 Ga. 613

ASKEW v. AMOS.

No. 345.

Supreme Court of Georgia

February 12, 1918

Rehearing Denied Feb. 25, 1918.

Syllabus by the Court.

The general rule is that estoppel, to be relied on, must be pleaded. Irvine v. Wiley, 145 Ga. 867, 868, 90 S.E 69(3).

(a) But equitable estoppel can be urged on the trial of a claim case without special pleadings to so authorize. Wright v McCord, 113 Ga. 881, 882, 39 S.E. 510(2). And see Frick Co. v. Taylor, 94 Ga. 683, 21 S.E. 713(2).

(b) Where a mortgage fi. fa. is levied upon land and a claim thereto filed, it is not error on the trial to admit evidence tending to show that the mortgage which is the foundation of the fi. fa. has been paid, over the objection that there are no pleadings to authorize such evidence. Nor is it error in such case to admit evidence tending to show that the plaintiff in fi. fa. said to an agent of the claimant, before the latter bought the land in controversy, that so far as he knew there was no lien against it, and to show that the claimant had bought the land on the faith of that statement.

Under the evidence it was not error to charge the jury thus "The claimant insists, gentlemen, that at the time of the purchase of this land, that he, being represented by another person, made inquiry of the plaintiff in this case with reference to the title to this property, and that the plaintiff, B. H. Askew, made the assertion or statement that so far as he knew or understood, that there was no claim or lien against this land in question, that the title was good; and that relying upon that representation he purchased the land."

While some portions of the charge excepted to are inaptly expressed in view of the entire charge a reversal will not result.

The evidence was sufficient to support the charges complained of in the twelfth and thirteenth grounds of the motion for a new trial.

"No request being made to charge as to the burden of proof, or the preponderance of evidence, mere failure to charge on these topics will not require a new trial." Small v. Williams, 87 Ga. 681, 13 S.E. 589(6). See Gunn v. Harris, 88 Ga. 439, 14 S.E. 593(5).

The evidence was sufficient to authorize the verdict, and the court did not err in overruling the motion for a new trial. The other assignments of error are without substantial merit.

Error from Superior Court, Baker County; W. M. Harrell, Judge.

B. H Askew levied a fi. fa. on mortgaged...