(After stating the foregoing facts.) 1. The foregoing statement discloses substantially the nature of this controversy and the material facts developed upon the trial. It was admitted by the Bank of Lumpkin, the plaintiff in error, that -the Bank of Stewart County had a lien on the bank stock owned by Patterson at the time of his death, which stock was subsequently sold by his administrators. The by-law of the Bank of Stewart County creating such lien was offered in evidence. This lien was valid and binding against the bank stock, and against the proceeds thereof in the hands of the administrators. See Owens v. Atlanta, Trust & Banking Co., 122 Ga. 521 (50 S. E. 379).
2. The question made by the facts in this case is whether there was an actual contract between the parties to this cause by which the lien of the Bank of Stewart County against the bank stock was waived, or whether its conduct estopped it from asserting its • lien. It is insisted by the plaintiff in error that the Bank of Stewart County waived its lien against the stock. This was entirely a question of fact. The evidence was in some respects in conflict, but the verdict of the jury settled that issue. The excerpts quoted from the charge of the court, and assigned here as erroneous, did not affect the jury’s verdict.' The evidence offered by the plaintiff in error and excluded by the court could not have produced a different verdict. While several exceptions áre made to the charge of the court, all of these exceptions are to the same effect, and complain that the court in the charge withdrew from the jury any consideration of the theory of estoppel pleaded by the plaintiff in error. We have examined the charge of the court in-this case with some care. The view taken by the trial court was that the doctrine of estoppel did not apply in this case, and we think this view was correct. We call attention to the material facts: The banks agreed to attend the administrators’ sale and. bid on the property belonging to the estate of Patterson; this agreement was for the sole purpose of making the property of the estate bring its fair value. The agreement to submit a joint bid upon the property, or to jointly buy the property, expressly excepted the bank stock. The Bank of Stewart County alone was to bid upon this stock, and the amount of the bid to be submitted was expressly fixed by agreement. The two banks were to become joint owners and equally interested in any property bought at the sale, *7except the bank stock. It was never contemplated that they would become so interested in the bank stock. The Bank of Stewart County was under no obligation to make known to the Bank of Lumpkin any claim of lien held by it on the bank stock. Not only was the Bank of Stewart County to buy the bank stock upon its own account, but the bid to be made by the Bank of Stewart County was fixed, and no possible harm could result to the Bank of Lumpkin by its failure to disclose its lien against this stock. The Bank of Stewart County did not claim a lien against any of the real estate bought by the banks jointly. The doctrine of estoppel by silence proceeds iqron the ground that he who is silent as to his alleged rights when he ought in good faith to speak shall not be heard to speak when he ought to be silent. Both banks were equally interested in seeing that the property of Patterson’s estate brought its fair market value. They were especially so equally interested after the Bank of Stewart County had agreed to buy the bank stock, thereby reducing its overdraft to an amount practically equal to the overdraft of the Bank of Lumpkin. It concealed no lien against any property on which the banks jointly agreed to bid. It was not silent in any respect concerning the real subject-matter of the agreement. The status of the respective banks was in no wise affected either by the making of the agreement or in the execution of the agreement in the manner in which it was executed. It is insisted that if the banks agreed to bid upon the property of the estate in order to raise a fund in which they should each proportionately share, the Bank of Stewart County is es-topped from asserting a lien on a part of this property or the proceeds of the sale thereof. It will be observed that in so far ns the banks became joint bidders, or in so far as it was possible for them to become joint owners of any of the property belonging to the estate, the banks will share proportionately in the distribution of the assets. In order for estoppel to arise in this case, the agreement must have contemplated, and the facts must have shown, that the banks agreed to buy jointly and own in equal shares not only the lands belonging to the estate of Patterson, but the 17 shares of bank stock as well. The agreement actually made between the parties was that the two banks would become joint bidders and, if necessary, would pay for and own in equal shares the remainder of the property -belonging to the estate of Patterson, on condition *8that the Bank of Stewart Comity would buy the 17 shares of stock at a fixed value. The two banks, by the agreement, were never to become interested in the purchase of the bank stock. A person is held to a representation made or position assumed, where otherwise inequitable consequences would result to another who, having the right to -do so under all the circumstances of the case, has in good faith relied thereon. “The doctrine of estoppel in pais is predicated upon a change of jiosition. to the hurt of one of the parties acting on the representations or conduct of the other.” Lynch v. Poole, 138 Ga. 303, 305 (75 S. E. 158). Compare Palmer v. McNatt, 97 Ga. 435, 437 (25 S. E. 406). According to Lord Coke, an estoppel is where a man is concluded by his own act or acceptance to say the truth. It is not the office of estoppel to work a positive gain to another. Its exclusive function is to protect him from injury which, but for the doctrine, he must necessarily suffer. It is the final element in the doctrine of estoppel that- the party who invokes the estoppel must have changed his position, to his injury, upon the strength of the facts upon which the estoppel is predicated. Mere silence will not work an estoppel. The “standing by” must be under such circumstances as not only to afford an opportunity to speak, but also to create a real or apparent duty to speak. So-called constructive fraud is the basis of an estoppel by silence. We fully agree with the view of the able and careful trial judge that the doctrine of estoppel was entirely inapplicable under the facts of .this case. In this view of the case it is unnecessary to deal with the further assignments of error made in the record. The judge did not err in overruling the motion for, a new trial.
