128 Ga. 824 | Ga. | 1907
(After stating the foregoing facts.)
It is to be regretted that parties should bring such a transaction as is here involved before the courts. That Sewell was endeavoring
Legally speaking where does the law find the parties to this case ? It finds the plaintiff with the legal title to the property in him, placed there several years before the transaction with the defendants, and apparently having no connection with the fraud or the dealing with them. If the maxim “ex dolo malo non oritur actio” (from fraud no cause of action arises), or the other like maxim, “ex turpi causa non oritur actio” (from a base transaction a cause of action does not arise), be applied to this case, it does not appear that the legal title in the plaintiff was tainted with the fraud which the evidence indicates entered into the subsequent agreement between him and the defendants. He did not have to invoke the unlawful agreement or transaction in order to assert that title. Thus, then, so far at least as this record discloses, the law found him with a legal title on which he could recover without resort to or reliance upon any illegal agreement, unless he were prevented from recovering by some legal defense. Hnder the doctrine expressed in the
Where money is paid or personal property is delivered under such a fraudulent or illegal contract, nothing more is necessary to pass title thereto. The contract is executed, and there can be no recovery of such money or property if the parties are in pari delicto. In regard to real estate, the mere allowing a person to take possession, or even placing him in possession, does not convey title or operate as a complete execution of a contract to make a title. A conveyance of real estate or of an interest therein must be in writing. A contract of sale in parol with full payment of the purchase-money and delivery of possession may take the sale without the
Where did the law find the defendants? They were in possession, or one of them was so. But they had no title, and possession alone would not defeat a recovery under a superior legal title. Something else must be shown. “If the owner or a person having-an interest in property represents another as the owner, or permits him to appear as such, or as having complete authority over it, he will be estopped to deny such oumership or authority, against persons who, relying on his representations or silence, have purchased or acquired an interest in the property; and generally A\diere a person by Avord or conduct voluntarily induces another to act on a belief in the existence of a certain state of facts, he will be estopped, as against him, to allege a different state of facts.” Equitable Mortgage Co. v. Butler, 105 Ga. 555, 560. In order to be benefited by this rule, the purchaser must have relied on the representations or conduct of the person sought to be estopped. He must have been induced to act on the belief in the existence of a state of facts, by reason of the representations or conduct of the other party. He must have acted in ignorance that the state of facts on which he claimed to rely was not the true state, and the purchase must have been a bona fide purchase, not a mere sham to avoid creditors, participated in by both parties. If the transaction was merely a trick or device to defeat a creditor or creditors of Sewell, and King and Norris knoAvingly took part in it, no equity could arise in their favor by reason of it. The law declares it to be wrong to seek to defraud creditors; and if parties combine together to commit such a wrong, no equity will arise in favor of either against the other; nor will an equitable estoppel arise in favor of one of such parties as against the other from such a transaction. Deen v. Williams, ante, 265. The bond for title was not made by Sew-ell, but by his mother. Whatever money was paid on the trade was not paid to him, but to her. The plaintiff does not rely upon this transaction either to recover the land or to set aside any contract of his. The defendants have not title, and must set up the transaction, whatever it was, in support of their claim. This be
We do not know what facts may be developed on the trial,— whether it may appear that the purchasers were bona fide and without notice of any wrongful purpose in the transaction, or whether they were participants in an effort to defeat a creditor or creditors of Sewell. But we do not think that our excellent brother of the circuit bench clearly placed before the jury the doctrine of executed and executory contracts, and the question whether the plaintiff had a legal title unaffected by the fraud involved in the transaction, if there was any; and if there was such a fraudulent transaction in which both parties participated, whether the defendant Norris had title outside of it, or must invoke the fraudulent transaction to establish some affirmative right or equity on his part.
Judgment reversed.