Harvey v. West , 87 Ga. 553 ( 1891 )

Bleckley, Chief Justice.

1. In Georgia, title to land is not acquired or lost by parol, but passes from one person to another by writing-. This is the general rule, but to this rule there are some exceptions. One exception is, after a child is allowed to hold a father's land under certain conditions,, for seven years, the law conclusively presumes a gift. Code, ^2664. And a child, or any other donee within the range of a meritorious consideration, may compel, the specific performance of a voluntary agreement if possession has been given under the agreement, and the donee has made valuable improvements upon the faith thereof. Code, §3189. A parol gift of land not yet rendered complete by lapse of time, under the first of these citations, nor established by a decree or judgment for specific: performance, under the second, is inchoate and therefore not sufficient, to divest the donor of ownership, and clothe the donee with title. Hughes v. Clark, 67 Ga. 19 ; Howell v. Ellsberry, 79 Ga. 475 ; Hughes v. Berrien, 70 Ga. 273. If the donee is not in a condition, without first enforcing specific performance, to assert and vindicate his right as against the claim of the donor, neither is the. douee;s creditor in such condition. The creditor may be treated as in a situation as good as that of his debtor, but not in a better. If the latter would have to establish his inchoate title by suit for specific performance, it would be inconsistent notto require the former to resort to a like proceeding. In this case the legal title was in the claimant, the father of the defendant in execution, at the time-of the levy and at the time the claim case was tried. That fact was decisive of the controversy. Taking as true all the evidence favorable to the plaintiff, including that which the court, rejected, nothing beyond a parol gift, followed by.possession and the making of valuable improvements, was established; and the possession shown was for a much shorter period than seven years.

2. Tt is insisted that the father was estopped from asserting his title as against the plaintiff in execution, because the plaintiff gave credit to the son whilst the' sou was in possession of the land now under levy, and because the father admitted before the credit was given that the laud was not his property, but belonged to the son. Hut the admissions relied upon were not made to the plaintiff', nor were the/ made, so far as appears, for the purpose of having them acted upon by him or any other person, or with any design or intention that they should be used as a basis of credit to the son, or to influence. any one to extend such credit. If the plaintiff, by reason of hearing of the admissions, from one or more persons to whom they were made, was induced to give the son credit, he volunteered to act upon something which was not addressed to him; and there is no evidence that any of the admissions were communicated to him by the order or direction, or even the permission, of the speaker. Surely merely loose talk in the neighborhood uttered when no particular transaction is in progress or in contemplation, cannot be seized upon by dealers eager for trade who happen to hear of it, and be made a basis for extending credit to their customers, and aftenvards for enforcing collections out of property to which their customers have no title. This would be a very dangerous and pernicious extension of the law of estoppel. The admissious- evidently related to the parol gift. They were evidence for what they were worth as admissions, but they certainly did not come with the irresistible force of an estoppel. This being so, it was immaterial whether the plaintiff had heard of them or not, or whether, after taking them at second hand, he acted upon them in extending credit.

3. Some of the rejected evidence may have been admissible, but treating it as admitted, the verdict must have been as it was; that is, in favor of the claimant. It was correct, and the excluded evidence could not have changed it without illegally sacrificing the substantial merits of the case. In none of the grounds of the motion is there any cause for a new trial. It is needless to discuss them severally. Judgment affirmed.