Norman v. Mcmillan, (No. 2142.)

• Decision Date: 12 April 1921
• Docket Number: (No. 2142.)
• Citation: 107 S.E. 325,151 Ga. 363
• Parties: NORMAN v. MCMILLAN et al.
• Court: Georgia Supreme Court

151 Ga. 363

107 S.E. 325

NORMAN

v.MCMILLAN et al.

(No. 2142.)

Supreme Court of Georgia.

April 12, 1921.

Rehearing Denied May 13, 1921.

(Syllabus by Editorial Staff.)

Error from Superior Court, Colquitt County; W. E. Thomas, Judge.

Action by R. P. Norman against Siddie McMillan and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Dowling & Askew, of Moultrie, for plaintiff in error.

Hill & Gibson, of Moultrie, for defendants in error.

FISH, C. J. [1] After filing at the appearance term, in an action of ejectment, pleas of not guilty, title by prescription, and bar of recovery of mesne profits for more than four years prior to the bringing of the suit, the court at the trial term allowed an amendment to the original pleas, a part of which was as follows:

"This defendant admits the plaintiff is the holder of the legal title to the property sued for in this case; that there is a prima facie case in the plaintiff, and that the plaintiff would be entitled to recover the premises in dispute except for the fact that the equitable title to said property is in this defendant, and that the plaintiff by reason of the facts hereinafter set forth is, and in conscience and equity ought to be, estopped from attempting to assert histitle to such lands, and from recovering the same in this action, which fact and matters of estoppel are affirmatively pleaded by this defendant, and in support of which she assumes the burden of proof and claims the right to open and conclude."

Held:

(a) It was not error to allow this portion of the amendment over the following objection:

"Because the defendant is not entitled to open and conclude without admitting that the title held by the plaintiff in an ejectment suit is the true title to the property in dispute, and that plaintiff is entitled to recover in said cause, without qualification or limitation."

(b) The material substance of the amendment being to the effect that the plaintiff, having an interest as remainderman in the land sued for, not only stood by and permitted the defendant to purchase the land in fee, paying therefor full value for the entire interest therein, without declaring his interest of which he then had knowledge, but aided in pointing out and describing the boundaries, and heard defendant's vendor's representations that their title was good, and that defendant in purchasing relied solely on such representations, having no notice of plaintiff's interest till long afterwards, when the suit was brought. Accordingly the amendment was not subject to the following objection:

"Because the amendment tendered by the defendant is insufficient as a matter of law, and is no defense to the action of the plaintiff, after admitting a prima facie case in the plaintiff."

(3) An objection that "the defendant did not comply with the requirements of law in presenting said amendment in said ejectment" was too general and indefinite to present any question for decision.

2. "A fraud may be committed by acts as well as words; and one who silently stands by and permits another to purchase his property without disclosing his title is guilty of such a fraud as estops him from subsequently setting up such title against the purchaser." Civil Code 1910, § 4419. The provisions of this section, however, operate only in favor of a purchaser bona fide without notice. Where the estoppel sought to be set up relates to the title to real estate, the party claiming to have been influenced by the other's acts or declarations must have been ignorant, not only of the true title, but also of any convenient means of acquiring such knowledge. Where both parties have equal knowledge or equal means of obtaining the truth, there is no estoppel. Civil Code 1910, § 5737; Stonecipher v. Rear, 131 Ga. 688 (3), 63 S. E. 215, 127...