Horton v. Johnson , 192 Ga. 338 ( 1941 )

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, 168 Ga. 101 (147 S.E. 32); Edwards v. Hall, 176 Ga. 632 (168 S.E. 254); Sweat v. Arline,186 Ga. 460 (197 S.E. 893); First National Bank v. Douglas County, 124 Wis. 15, 23 (102 N.W. 315); Thorington v. Montgomery, 88 Ala. 548, 553 (7 So. 363); Langley v. Batchelder, 69 N.H. 566, 568 (46 A. 1085); Carter v. Bustamente, 59 Miss. 559; Nagle v. Tieperman, 74 Kan. 32 (85 P. 941, 9 L.R.A. (N.S.) 674); Equitable Life Insurance Co. v. Wright,54 Iowa, 606 (7 N.W. 93); Wilson v. Godfrey, 145 Iowa, 696 (124 N.W. 875); 61 C. J. 1200, § 618. This being true, it would seem to be wholly immaterial whether the daughter was seeking to buy in the property on the advice of her mother or her mother's agent. Since such a purchase of the tax title would be altogether legal, it would not seem that there could possibly be any fraud, collusion, or conspiracy in merely inducing the daughter to do that which the law fully authorized. Miller v. Jennings,Edwards v. Hall, supra. In order to constitute a fraudulent or otherwise unlawful conspiracy, the object to be attained must itself be such as the law does not approve, or the method employed by the alleged conspirators must constitute a tort in and of itself. See Woodruff v. Hughes, 2 Ga. App. 361, cited in the majority opinion. In that case it was held that "Where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done." In this case, since the alleged purpose sought to be effectuated between the alleged conspirators was one which the law approved as altogether legal, and since there does not appear to be any semblance of evidence that, in effectuating such lawful purpose, any other or different tort against the rights of the plaintiff was committed or contemplated, there remains no room for the application of the rules relating to fraud, conspiracy, and collusion.

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 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, 184 Ga. 657, 664 (192 S.E. 372), "While `the general rule is that estoppel, to be relied on, must be pleaded,' . . yet there are well-recognized exceptions to this general rule. Thus, since it is unnecessary under our pleading act to file a replication, `this rule does not apply where theplaintiff relies upon estoppel in order to defeat a defense raised by the defendant in his answer,' and in such a case `evidence in rebuttal of other evidence [of the defendant] is admissible for the [plaintiff] for the purpose of showing an estoppel, even though estoppel is not pleaded.'" See cases there cited. The rule is different in a case where a defendant claims an estoppel, and "he must have pleaded [the] estoppel, if not expressly, at least by showing [the necessary] facts."Fulenwider v. Fulenwider, 188 Ga. 856 (2, b), 863, 864 (5 S.E.2d 20). Under this principle of estoppel, it seems that the verdict rendered was not only authorized but demanded.