Lanier v. Bryant

Atkinson, Justice. In 1893 John L. Bryant died intestate, [410] seized and possessed of certain realty consisting of a house and city lot occupied by him as a dwelling. He left no debts. lie was survived by his widow, one married daughter, Mrs. Maxwell, and J. H. Bryant, a youth nine years of age who was the only living child of George Bryant, a son who predeceased John L. Bryant. No other descendant survived him. The widow and Mrs. Maxwell were living in the house with John L. Bryant at the time of his death, and both continued to live there until the death of the widow in 1899. Thereafter Mrs. Maxwell continued to live in the house until February 8, 1927, at which time she as sole heir of John L. Bryant sold the property to E. S. and T. M. Lanier, and executed to them a deed purporting to convey the entire title to the house and lot. Mrs. Maxwell died in 1928. In 1932 J. H. Bryant as an heir of John L. Bryant, deceased, instituted an action against the Laniers, seeking to recover a half interest in the land and mesne profits. The defendants filed an answer. They subsequently offered an amendment in which it was alleged : “That plaintiff is estopped from asserting title to any interest in the property sued for, by reason of the following facts: that for some time prior to the purchase of said property by these defendants from Caroline Y. Maxwell they conducted a store at 568 Decatur Street in the City of Atlanta, not far from the property in question, and they knew that said Mrs. Maxwell was living on said property and had been living there for a great many years. These defendants had no information whatsoever as to her title to the property. That shortly before they purchased said property from Mrs. Maxwell they were approached by the plaintiff and informed by him that Mrs. Maxwell was his aunt, and that she owned the property sued for, and that she wanted to sell it for $1000, and plaintiff wanted defendants to buy said property from his aunt. These defendants stated that they would not consider giving $1000 for the property, but, if Mrs. Maxwell had a good title thereto, would be willing to give her $500 for it; whereupon the plaintiff stated that his aunt did own the property and that there was nothing against it. Later the plaintiff again approached these defendants and informed them that he had talked to his aunt, and that she would not take $500 for the property, but that he thought she would take $800 for it. These defendants declined to give that, but stated that they would give as much as $650; whereupon the plaintiff afterwards reported [411] to them that his aunt would take $650 for the property, and they thereupon purchased the same from her. These defendants say that in making said purchase they believed the representations of the plaintiff that said Mrs. Maxwell was the sole owner of said property; that they had no knowledge of plaintiff having any interest whatsoever in the property; that he never asserted to them that ho had any interest therein, but represented >the property as belonging to his aunt. These defendants had no way oE knowing that the plaintiff had an interest in the property, and in purchasing said property from said Mrs. Maxwell they did so inlying upon the representations oE the plaintiff that the property belonged to his aunt.” The amendment was allowed over objections: “1. That it does not allege that the plaintiff had any knowledge that he owned any interest in the land sued for at the time he is alleged to have made the representations referred to 'in said amendment. 2. It is not alleged in said amendment that the acts or representations or conduct of the ¡flaintiff set out in said amendment were done intentionally for the purpose of influencing the conduct of the defendants. 3. . . that it shows on its face that the defendants had equal opportunity with the plaintiff to know the truth.” The plaintiff excepted pendente lite. On the trial a verdict was returned for the plaintiff. The defendants’ motion for a new trial, on grounds hereinafter stated, was overruled, and they excepted. The plaintiff filed a cross-bill of exceptions assigning error on the allowance of the amendment. The judge refused to allow one of the defendants, as a witness in his own behalf, to testify: “I have paid the taxes and made repairs on the property.” There was no other evidence or offer of evidence tending to show the amount of the taxes or the cost of the repairs. It is held that the rejection of this evidence was not cause for a reversal. See opinions of special concurrence, infra. Evidence as to declarations by Mrs. Maxwell, contained in an affidavit that "she is the daughter and sole heir at law of John L. Bryant, and that he died March 9, 1893,” and that "deponent makes this affidavit for the purpose of inducing the Atlanta Title and Trust Company to pass title to [the property in question] which is this day being sold to E. S. & T. M. Lanier,” were parts of the res gestae when considered in connection with other evidence tending to show that the declarant was in possession of the land at [412] the time the declarations were made, and that the named company was employed by the Laniers to pass on the title, and that upon their approval of the title the sale was.completed by execution of a deed. The declarations, being of the character indicated, were admissible on the questions of good faith and diligence (Code of 1910, § 5737; Code of 1933, § 38-115) of the defendants in support of their plea of estoppel; and the court erred in excluding the declarations from evidence on objection that they were not binding on the plaintiff suing as a coheir. The court charged the jury: “If one who by acts and declarations induces another to buy property as the property of a third person, he is estopped from setting up title to. himself to such property, provided the purchaser acts upon such acts or declarations, and not upon his own knowledge or judgment.” The court having thus charged, if the defendant desired further instruction upon the principle embodied in the Code of 1910, § 4623 (Code of 1933, § 37-703), that “misrepresentation of a material fact, . . if made by mistake and innocently and acted on by the opposite party, constitutes legal fraud,” there should have been an appropriate written request. The ground of the motion for new trial complaining of the omission, without request, to charge the principle stated is without merit. “ Misrepresentation of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, constitutes legal fraud.” Code of 1910, § 4623; Code of 1933, § 37-703. “Where the estoppel relates to the title to real estate, the party claiming to have been influenced by the other's acts or declarations must not only be ignorant 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 shall be no estoppel.” § 5737 (1933, § 38-115). “In order for an equitable estoppel to arise, there must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence as to amount to constructive fraud, by which another has been misled to his injury.” § 5738 (1933, § 38-116). If a person has legal title to land, which fact he does not know but has convenient means of knowing, and after a lapse of twenty-seven years, during which time he was under no [413] legal disability,'he still has not learned the fact of his interest in the land, and in those circumstances he induces one to buy the land from a third person by representations that the land is the property of such third person, his misrepresentations to the purchaser innocently made, coupled with his delay in ascertaining the truth, will amount to constructive fraud within the meaning of the Code of 1910, § 4623 (Code of 1933, § 37-703), and (§§ 5737, 5738; 1933, §§ 38-115, 38-116) may be pleaded as an estoppel by the purchaser on the faith of the title of his vendor. See Equitable Mortgage Co. v. Butler, 105 Ga. 555 (31 S. E. 395); Brice v. Sheffield, 121 Ga. 216 (48 S. E. 925); Sewell v. Norris, 128 Ga. 824 (58 S. E. 637, 13 L. R. A. (N. S.) 1118); Tune v. Beeland, 131 Ga. 528 (62 S. E. 976), applying the general rule that if an owner induces another to purchase his property from a third person he will be estopped to assert his title against the purchaser. The charge complained of in the fourth ground of the motion for new trial, in so far as it stated that “the party who is claimed to have influenced the conduct of the other must act intentionally for that purpose,” was too broad as applied to the instant case, and was not in accord with the principle above announced. The amendment to the answer, setting up estoppel, was appropriate; and the judge did not err in allowing the amendment over the stated objections. Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill. All the Justices concur.-