130 Ga. 338 | Ga. | 1908
The record presents the following case. Charley Landers died, leaving eight heirs entitled to receive his estate. Prior to a division of the lands belonging to the estate, a daughter of Landers, who was one of the eight heirs thus entitled, died leaving no children, and her share of the estate was inherited by her husband, Henry B. Schurter, as her sole heir. Schurter was requested to be present and look after a division of the lands belonging to the estate, and in reply wrote one of the heirs the following letter: “North Decatur, Ga., Oct. 8, 1894. Dear Brother Wash.: SanfoTd has informed me that you wish for me to come up to see about dividing the land, and I notice your kind letter reads like I had any part in the land. While I thank you very, very much for your kindness and kind attention, I feel it my duty to tell you that I have no part in the land whatever. Of course if the baby had lived it would have got its part lawfully, but as it is I have nothing to do with the land. Thanking you again for your kindness I close, with love to you and family. Tour loving brother, Henry.” The other heirs then proceeded to divide the lands belonging to the estate among themselves, leaving Schurter ■out of the division. The land involved in this case was conveyed by certain of the heirs to C. S. Landers, as an allotment to 'him, by deed dated November 5, 1895, and by this grantee to R. D. Stephens by deed dated July 22, 1899. Neither of these deeds was recorded. Henry R. Schurter, on July 3, 1901, conveyed his entire interest in the land belonging to the estate of Charley Landers to J. T. Peyton, the plaintiff in this case, which deed was recorded July 21, 1901. In March, 1905, Peyton made an application for partition of the land conveyed to Stephens by the deed above mentioned, which application was resisted by Stephens, and the issue thus made was tried at the March term, 1906, of Haber-sham superior court, resulting in a verdict in favor of the defendant. The plaintiff moved for a new trial, and to the judgment of
If the heirs of Charley Landers were influenced by Schurter’s letter to one of them, were they ignorant of the true title? There is no evidence whatever that they were ignorant of the fact that Sehurter had title to a one-eighth interest in the land, except the .testimony of one heir, that when the land was divided he did not know that Henry Sclrtirter had am*- interest therein'. In the letter from Sehurter he says that the letter to him from one of the heirs reads like he had an interest in the land. This would indicate that the heir who wrote the letter thought Sehurter had an interest therein. Eegardless of what this expression indicates, with the exception noted above, it does not appear that the heirs were ignorant of the true title, and does not appear that they did not have any convenient means of acquiring knowledge of the title; and the burden was on them to affirmatively establish these facts, before they could claim that the plaintiff was estopped because they were influenced by the acts or declaration of Sehurter. The latter part of the code section above quoted provides, “Where both parties have equal knowledge or equal means of obtaining the truth, there is no estoppel.” It does not appear that the party to whom Sehurter wrote and the other heirs did not have equal means of obtaining the truth about the title, and did not have equal knowledge, with the exception of one heir. In fact it would seem that the knowledge of the party writing the letter to Sehurter was greater, as this party wrote as if Sehurter had an interest in the land. This is what Sehurter says in his reply, and, indeed,- we see no motive for writing Sehurter unless the writer thought Sehurter had an interest in the land. The Civil Code, §5152, says: “In order
We do not deal with the question of cotenancy, or any other question, as affecting adverse possession; as the evidence does not show any possession under color of title for seven years prior to the institution of this proceeding.
Judgment reversed.