Wright v. Mccord

• Decision Date: 19 July 1901
• Parties: WRIGHT. v. McCORD.
• Court: Georgia Supreme Court

39 S.E. 510

113 Ga. 881

WRIGHT.

v.McCORD.

Supreme Court of Georgia.

July 19, 1901.

ESTOPPEL IN PAIS—EXECUTION—CLAIM OF THIRD PERSON.

1. One who, for the purpose of inducing another to lend money to a third person upon land as security, represents to the person from whom the loan is sought that the land offered as security belongs to the proposed borrower, and who thus procures the loan to be made, is, in a proceeding by the lender to subject the land to his debt, estopped from thereafter denying that title to the same was in the borrower at the time the deed was executed, and asserting that title was at the time in himself.

2. Where, under such circumstances, the lender reduces his claim to judgment and reconveys the land to the borrower, and causes it to be levied upon, and the person who so procured the loan to be made files a claim, the plaintiff in execution on the trial of the issue thus made, and without special equitable pleadings, is, upon the facts being made to appear as above stated, entitled, as against the claimant, to a verdict and judgment subjecting the property to the execution.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by W. S. McCord against John A. Wright. Judgment for plaintiff. On levy of execution, W. A. Wright filed a claim. Judgment for plaintiff in execution, and claimant brings error. Affirmed.

The following is the official report: McCord obtained a judgment against Wright in 1889. Execution issued therefrom, and was levied on certain land as property of the defendant, John A. Wright, and a claim was interposed by W. A. Wright. On the trial of said claim the court directed a verdict finding the property subject. The defendant made a motion for a new trial on the ground that the verdict was contrary to law and evidence, and that the court erred in directing the verdict; the evidence not showing title in the defendant before the judgment, nor possession of the property after judgment. The motion for new trial was overruled, and the defendant excepted. On the trial the following evidence was introduced by the plaintiff, to wit: Said execution, and three deeds to the land in dispute, —one to John A. Wright, made in 1888 and recorded in 1889; one a loan deed from John A. Wright to W. S. McCord, made and recorded in 1897; and one from W. S. McCord to John A. Wright; said last-mentioned deed being made pursuant to the statute for the purpose of levy and sale. Said deed was recorded prior to the levy to which this claim was interposed. Also two bank checks, dated June, 1897, signed by Charles White-ford Smith, —one payable to John A. Wright, and indorsed by John A. Wright and W. A. Wright; the other payable to H. M. Atkinson, and indorsed by H. M. Atkinson. Charles W. Smith testified as follows: "W. A. Wright told me that the property was his brother's, and he never intimated that the property was his until long after the loan deed had been made, and a default in the interest. Application for the loan was brought to me by C. N. Allen and W. A. Wright. W....