50 Ga. App. 501 | Ga. Ct. App. | 1935
To certain mules levied upon in tlie foreclosure of a bill of sale to secure debt, a claim was filed. The bill of sala included also other livestock and personalty, and contained a covenant and warranty of title which stipulated that the property was “free and clear of all rights and encumbrances.” Immediately following the note and bill of sale, signed by the debtor alone, appeared the following waiver, which the evidence showed, without dispute, was signed by the claimant, the mother of the maker of the bill of sale: “Waiver of landlord’s liens. In consideration of money represented by the note on the adverse side
1. “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.” Civil Code (1910), § 5738. Where one knows that he owns the title to or an interest in real or personal property, and knowingly permits or acquiesces in its sale, encumbrance, or pledge by another, he will be estopped from setting up his title or interest against the person who by such conduct has been misled to his injury. Caraker v. Brown, 152 Ga. 677 (111 S. E. 51) ; Georgia Pacific Ry. Co. v. Strickland, 80 Ga. 776 (6 S. E. 27, 12 Am. St. R. 282) ; Carroll v. Turner, 54 Ga. 177; Ford v. Blackshear Mfg. Co., 140 Ga. 670 (3) (79 S. E. 576). However, where the estoppel relied upon is not one by deed or from an express contract, signed by the person against whom the l'ule is invoked, and is merely an equitable estoppel, it is the general rule that such person must, before the injury, have had actual knowledge of the transfer, sale, or encumbrance, and the material facts and circumstances attending the transaction. See Dunson v. Harris, 45 Ga. App. 450 (164 S. E. 910). The rule as to estoppel by contract is more comprehensive, and it has been held that, even where one is not a party to the sale itself, but where his name is signed on the paper so as to give it authenticity and credit, as in attesting a deed,
2. In the instant case, whether effect be given to the rule of equitable estoppel or the rule of estoppel by contract, the result would be the same. Even if the claimant by her signature to the waiver of her landlord’s lien against the immediately preceding bill of sale to secure debt, and by the express reference in her waiver to such bill of sale, did not in effect so recognize the covenant and warranty of title made by the debtor in the bill of sale to the property in question as to be conclusively bound thereby the same as if she had signed the bill of sale as a party thereto, she will at least prima facie be presumed to have read the bill of sale, to which she expressly referred, or to have had knowledge of its essential contents. She will be assumed not to have acted without knowledge of the property on which she expressly waived her lien. The bitrden was upon her to negative this presumption, and this she failed to do by her own or other testimony. A verdict was therefore demanded against the claimant; for, while she did not admit that she signed the waiver, the evidence that she did so was in no wise disputed. The slight inaccuracy in the charge was immaterial, and did not authorize the setting aside of the verdict and judgment.
3. In view of this final disposition of the case, the exceptions pendente lite of the plaintiff in execution need not be considered.
Judgment reversed.