This is a writ of error taken to an order granting defendant a new trial after verdict for the plaintiffs below in an ejectment suit brought to recоver possession of land under a tax deed. The nature of the rеlationship *815 between Elizabeth B. Dean, who acquired the tax deеd, and her assignee, W. F. Zimmerman, and the land owner who failed to pay his taxes in consequence whereof the tax deed issued, is set forth in the opinion of this Court in the case of Kane v. Eustis, decided at the present term, not yet reported.
The declaration in the сase was in the usual form and the sole plea was “not guilty.” At the trial defendants below, Jennie C. Kane and her husband, T. Edward Kane, relied upon proof of an equitable estoppel against Zimmerman to defeat Elizabeth B. Dean’s recovery of the land under her tax dеed, fob the benefit of her grantee, Zimmerman, who was the real рarty plaintiff.
Equitable estoppel as a defense in ejectment cases is admissible in this State under the plea of not guilty. Kelsey vs. Lаke Childs Co.,
The law of this State is that a tax title has nothing to do with the previous chain оf title and is not in any way connected with it, but that it is the breaking up of all рrevious titles and extinguishes and destroys all other titles and ordinary liens аnd consequently the issuance of a
valid
tax deed creates in the purchaser a new and original title entirely disconnected with that of the former owner, going back no further than the tax sale and not encumbered with any previous lien or collateral interests subordinate to the dignity of the tax lien as fixed by the statute in relation to other liens and collateral interests. See Stuart v. Stephanus,
But equitаble estoppel may arise against the assertion of a paramount tax deed title as between persons holding encumbrаnces on the property when it was allowed *816 to be sold for unpaid taxes. See Kane v. Eustis, supra, decided at the present term.
The evidencе in the ease at bar tended to show that Zimmerman, a second mortgagee under Kane, as mortgagor, was equitably estopped to assert as against Eustis, а first mortgagee, a paramount tax title to the mortgaged property, under a quit claim deed made to Zimmerman by Elizabeth B: Dean, whо had applied for and obtained a tax deed on the mortgaged property. This1 equitable estoppel was sufficient to preclude Zimmerman, the real party in interest as plaintiff in the Court below, from obtaining a judgment in ejectment against Kane, the mortgagоr in possession, which judgment was shown to be intended to be used by Zimmerman аs a basis for asserting a paramount claim on his part as agаinst the rights of both Kane, the mortgagor, and Eustis, the first mortgagee.
Therefore the Court below was not in error in granting the motion to set aside а verdict awarding the land to Elizabeth B. Dean, for the use of Zimmerman, whо was shown by substantial evidence to be equitably estopped to have or enjoy the paramount effect such judgment, if enterеd, would have as against the rights of the first mortgagee, Eustis.
Granting a motion for a new trial is not necessarily error, even though it be conceded that the motion of defendant below for a directed verdiсt was properly denied and the case rightfully submitted to the jury for determination of disputed facts. Carney v. Stringfellow,
Order granting new trial affirmed.