Shaw v. Green , 180 Ga. 760 ( 1935 )

Per Curiam.

In Brown v. Tucker, 47 Ga. 485 (3), it was held: “One who silently stands by and permits another to purchase his property, without disclosing his title, is not guilty of such a fraud as estops him from subsequently setting up such title against a purchaser with notice. Section 2915 of the Code [Code of 1933, § 105-304] only operates in favor of a bona fide purchaser without notice.” See also Patterson v. Esterling, 27 Ga. 205. The doctrine of caveat emptor applies. The burden was upon the petitioner Shaw to show by a preponderance of the evidence that the defendant, Mrs. Green, was estopped. To carry that burden it was necessary to prove something more than the mere presence of Mrs. Green at the sale. It was necessary to show (a) that Mrs. Green heard the statement of the auctioneer in regard to the title, and (b) that Shaw acted upon the conduct of Mrs. Green as showing consent to the auctioneer’s statement. Both of these are required to constitute the petitioner Shaw a bona fide purchaser. There is no evidence that Mrs. Green heard the statements of the auctioneer. It is certain that Shaw did not act upon any theory of estoppel against Mrs. Green, because he testified that he did not know, until after the sale, that Mrs.- Green had a mortgage on the property. No one testified to seeing Mrs. Green at the time of the announcement by the auctioneer as to the title. All the statements of Mrs. Green, as shown by the record, were made after the sale in connection with the offer of a less amount than the mortgage money due Mrs. Green, except the testimony of one witness who swore that he heard Mrs. Green say to Mr. Hunton: “Mr. Hunton, your property is selling too cheap, isn’t it?” A little later the sale was called off, and nothing else was offered for sale. According to these facts, the petitioner failed to carry the burden, and the court did not err in granting a nonsuit.

Judgment affirmed.

All the Justices concur, except Beck, P. J., and Hutcheson, J., who dissent,