DocketNumber: 13576.
Citation Numbers: 15 S.E.2d 605, 192 Ga. 338
Judges: PRATT, Judge.
Filed Date: 5/28/1941
Status: Precedential
Modified Date: 1/12/2023
As I understand the record in this case, there is neither any direct evidence nor any fact or circumstance which in any wise tends to show any fraudulent conspiracy between the mother and daughter, whereby the property would be bought in by the daughter for the benefit of the mother. On the contrary, all the evidence and every fact and circumstance seems to indicate that the property was to be bought in by the daughter for herself and with her own money or on her own credit. Accordingly, it seems that the theory of the petition, that the property was in fact bought in by the mother through this subterfuge under which title was to be taken in the name of the daughter, is in no wise supported by any proved fact or circumstance. As I interpret the law, in the absence of any principle of estoppel, there would be nothing to prevent the daughter from buying in the property for herself, in her own name and on her own credit, so as to obtain a good title thereto free from any previous existing secondary lien, such as the security deed held by the plaintiff and assumed by the mother. This seems to be supported, not only by the clearly enunciated decisions of this court, but by the overwhelming weight of general authority.Miller v. Jennings,
The only reason which impels me to concur in the judgment of affirmance does not relate to any of the alleged acts of fraud, collusion, and conspiracy, the existence of which I do not think is shown by the record. It does appear, however, that during the time in which the plaintiff lienholder could have protected her lien by discharging the tax indebtedness, the mother went to the plaintiff's agent and attorney, and asserted her intention to discharge these tax claims, and even went so far as to procure this attorney's assistance in gathering the data from the records in order to effectuate such expressed intention. This evidence was uncontradicted, and was admitted without objection. Manifestly, if the mother had done what she thus expressed her intention to do, the plaintiff would have been protected in her lien without any further action on her part, for the reason that her lien would have become the *Page 357
first outstanding claim against the property the moment that the mother discharged the tax indebtedness. It would not seem, although it should be conceded that the mother — as might well have been the fact — fully intended to do as she then and there expressed her intention, that the daughter, without any notice from the mother to the plaintiff as to any change in the mother's intention, would be permitted to avail herself of the expressed intentions made by the mother and of the unreported change in the expressed program, where it further appears that the mother and daughter were acting more or less in concert, and the daughter admittedly acted on the advice of the agent for each of them. While it is true that the principle of estoppel, on which this special concurrence is based, was not pleaded by the plaintiff, the evidence on this subject was not only admitted without objection, but was uncontradicted. As was held by this court inRieves v. Smith,