Hadden v. Smith
Hadden v. Smith
Opinion of the Court
The court did not err in disallowing the amendment offered in aid of the levy, or in directing the verdict in favor of the claimants. While under the facts stated in the amendment the claimants might have been estopped from asserting title to the timber (Walden v. Mahnks, 178 Ga. 835, 174 S. E. 538, 95 A. L. R. 1101; Hadden v. Stevens, 181 Ga. 165, 181 S. E. 767), the execution involved in this case is not a lien upon any specific property, but is a mere general execution, and represents a liability for a tort or some other breach of duty committed by another for whose conduct the claimants were in no way responsible. The transferee of the execution is virtually seeking to hold the claimants as insurers of the timber, whereas the estoppel could affect them only so far as to cause a loss of title. Estoppel is negative, not creative. Parks v. Simpson, 124 Ga. 523 (52 S. E. 616). If the claimants themselves had sold the timber and had given general warranty of title, they still would not be liable for the independent act of some other person whereby the purchaser was damaged. Whether, under a proper construction of the amendment, the damage sustained by the plaintiff in fi. fa. was caused by a trespass or by a breach of some covenant in the lease or contract as made by J. L. McNeal, these claimants were in no wise accountable therefor, and it would be unlawful to permit the levy to proceed against property their actual title to which the holder of the execution does not dispute.
Nor does the fact that the timber would never have been purchased from McNeal by the plaintiff in fi. fa., except for the con
Judgment affirmed.
Reference
- Full Case Name
- HADDEN v. SMITH
- Status
- Published