71 Ga. 497 | Ga. | 1883
It is obvious that the verdict in this case is supported by the evidence, and should stand, unless the judge of the superior court failed to charge a request of the plaintiffs which should have been given, or gave an erroneous charge, that influenced the finding, and which should have been omitted.
We think he did neither.
The plaintiffs held a mortgage, made by Pierce, which had been foreclosed in their name against Wilkins, as Pierce’s administrator. After the foreclosure of the mortgage, there were negotiations between them and Wilkins & Cain about some matters of business which Wilkins & Cain, as attorneys at law, had in hand for them; these negotiations resulted in an order from the plaintiffs to Mr. Knight, their attorney, to pay the proceeds of the mortgage to Wilkins & Cain. Wilkins caused this mortgage to be satisfied, and charged up the amount to Pierce’. estate, and returned the charge to the court of ordinary, which Was allowed. Thereafter there was a division in kind of the
The inconsistency between these admissions and Wilkins’s testimony in this case is not apparent. The two may be reconciled, and wherever this is practicable, the law requires it to be done, in order to save the witness from the imputation of false swearing. At most, this was a fact affecting the credit of the witness, and was properly left to the jury. Estoppels are not favored, and should not be resorted to except in cases “ where it would be more unjust and productive of more evil to hear the truth than to forbear the investigation.” Code, §3753. They apply only as between parties and privies to the suit or litigation in which the admissions relied on as an estoppel were made. The claimant in this case was an utter stranger to these proceedings; he did not hold under Wilkinson & Wilson, or Wilkins & Cain, but under Pierce’s heir at law, who had, in due course of administration, acquired title to the property in question; and it does not appear that he had notice of any incumbrance upon his title; indeed it is evident that he was apprised there was none.
Judgment affirmed.