Opinion
9507
September 14, 1916.
Before SHIPP, J., Barnwell, July, 1915. Affirmed.
Action by H.P. Anderson against Isaac Dunbar and another for the recovery of real estate. Judgment for defendant, and plaintiff appeals.
The decree of the Circuit Judge was as follows:
This is an action for the recovery of the real estate described in the complaint. The defendant answered; the second defense pleaded, being the plea of estoppel. The cause by agreement was referred to the master to take the testimony. The cause came before me on the testimony taken by the master. It was agreed at the hearing by counsel that the plaintiff has title to the land in question, and the only question before me is: Has the defendant sustained the plea of estoppel? I answer the question in the affirmative. It appears that plaintiff here is the brother of defendants, grantor to the lot in question, and the plaintiff prepared the deed by which the land in question was granted to defendant by the plaintiff's brother, Miller Anderson. He was also the notary before whom the deed was probated. The deed was dated in January, 1904, at which time the plaintiff's brother, Miller Anderson, was paid $25 of the purchase money and the grantor, Miller, did not deliver the deed, retaining it with the agreement that it should be delivered upon the defendant's paying the balance of the purchase money, to wit, $50. Miller Anderson died before the deed was delivered, and the plaintiff here was the executor of the estate of Miller Anderson. In October, 1905, the present plaintiff, with others, instituted a suit against Mrs. D.G. Weeks for the partition of certain lands, being lands from which the land in question had been cut and involving title to this land. During the pendency of that suit in January, 1906, the plaintiff, who was the executor of Miller Anderson's estate, called on defendant to pay the balance of the purchase money, to wit, $50, on the lot sold to him by Miller Anderson, and receive the balance of the purchase money and delivered the deed to defendant. The defendant testifies that plaintiff then represented to him that the title of Miller Anderson was all right. A few days after the deed was delivered to defendant, plaintiff made him party defendant in the case of H.P. Anderson et al. v. Mrs. D.G. Weeks, thus putting in issue the title to the lot in question. Defendants did not answer in that suit, and the plaintiffs prevailed in the suit, and the lands were sold for partition, and the plaintiff bought the lot in question here and received the master's deed. He then instituted this suit for possession of the lot in question. I hold that the plea of estoppel has been sustained, and it is, therefore, ordered, adjudged, and decreed that plaintiff is estopped from asserting his title against the defendant or defendant's grantee, and the complaint is dismissed, with costs.
Mr. R.C. Holman, for appellant.
Mr. R.A. Ellis, for respondent.
September 14, 1916.
The opinion of the Court was delivered by
Judgment affirmed for the reasons stated by the Circuit Judge.