163 Ga. 778 | Ga. | 1927
Simmons brought an action in statutory form against Dan R. Groover, to recover a described tract of land containing 140 acres. His claim of title was based upon a security deed from James B. Groover, dated August 25, 1917, and duly recorded. At the trial the plaintiff offered an amendment to his petition, setting up the following: “1. On the date of the deed from James B. Groover to Brooks Simmons, conveying a tract of 920 acres of land, including the 140-acre tract described in plaintiff’s petition, various judgments, executions, and security deeds were outstanding against the entire 920-aere tract, which liens were older than the- deed from James B. Groover to Dan R. Groover, dated February 24, 1914, describing the 140-acre tract of land now in dispute. A list of said liens being hereto attached. . . 2. At the date of the deed from James B. Groover to Brooks Simmons,
We are of the opinion that the court erred in allowing the amendment to the petition. The suit is an action for land. Under the well-settled and ancient rule that the plaintiff must recover upon the strength of his own title and not upon the weakness of that of his adversary, it may be doubted whether suit for the recovery of land can be based solely upon an estoppel in pais in
A fundamental rule of evidence is that a party is not permitted to prove matters which are not put in issue by his pleadings. Pirkle v. Cooper, 113 Ga. 828 (4) (39 S. E. 289); Insurance Co. v. Leader, 121 Ga. 260 (48 S. E. 972). It is an equally fundamental canon of pleading, especially as related to a plaintiff, that he must plead as well as prove every material essential necessary to enable him to carry the burden of establishing the affirmative of the issue. “The object of pleading is to notify the opposite party of the facts which the pleader expects to prove, and so it is that the allegation of such facts must be made with that certainty which will enable the adverse party to prepare his evidence to meet
While it is a general rule that one who attests a deed, mortgage, or other conveyance is estopped to assert a claim adverse to the title or interest conveyed, an estoppel does not arise in any instance unless the attesting witness knows its contents, nor would attesting a conveyance work an estoppel unless it is coupled with some act on the part of the purchaser which puts him in a disadvantageous position. “To work an estoppel, however, the attestation must be coupled with some act on the part of the purchaser which puts him in a disadvantageous position, such as payment of the purchase-price or making improvements. Nor is there any estoppel where the grantee has actual notice of the title of the attesting witness or constructive notice by registration, nor as against a title
It must be remembered that to have the benefit of an estoppel by representations or conduct of the owner of land the purchaser must have acted in reliance thereon. Goodson v. Beacham, 24 Ga. 150; Stewart v. Brown, 102 Ga. 836 (30 S. E. 264); 10 R. C. L. 782, § 97, note 9. Under the particular facts in that case, it was ruled in Georgia Pacific Ry. Co. v. Strickland, supra, that “One who attests a deed, knowing its contents, can not afterwards stand by and see expensive work done under it on the premises, making no objection, and then assert an older adverse title in himself, and recover the premises in opposition to the deed to which his attestation gave authenticity and credit.” In that case the attesting witness knew the contents of the deed. Nor was that all. He stood by and saw expensive work done on the'premises without objection. Certainly he was estopped. But in the body of the decision the principle applicable here was stated by the court. “His mere attestation of the deed would not have been binding upon him if he had not afterwards stood by and seen money expended on the faith of it. Certainly the Georgia Pacific Company had no reason to apprehend -that he would ever assert title in opposition to the deed which he had attested; that company, so far as appears, had no notice whatever of any claim on his part adverse to the title which the Georgia Western Company acquired under the deed — the very deed to which his attestation gave authenticity and credit.” Here the court recognizes the essential condition imposed by section 5737 as an essential prerequisite to an estoppel; “the Georgia Pacific Company . . had no notice whatever of any claim on his part adverse to the title which the Georgia Western Company acquired.” In construing section 5737 in Wilkins v. McGehee, 86 Ga. 764, 770 (13 S. E. 84), this court, quoting from Brant v. Va. Coal Co., 93 U. S. 326 (23 L. ed. 927), and citing 2 Herman on Estoppel, §§ 957, 948 et seq., stated the rule as follows: “Where the estoppel relates to the title of real property, it is essential to the application of the doctrine that the party claiming to have been influenced by the conduct or declarations of another was himself not only desti
Exception is taken to the judgment overruling the motion for a new trial, and various errors are assigned upon certain excerpts from the charge of the court. Some of the exceptions are based upon the same principles as the demurrer to the amendment; but inasmuch as the error in allowing the amendment was controlling in its nature, the further proceedings in the trial were nugatory, and the case must be remanded for further proceedings in accordance with this judgment.
Judgment reversed.