
    REESE v. SPENCE et al.
    
    No. 12731.
    June 17, 1939.
    
      
      D. B. Howe and Walter Matthews, for plaintiff.
    
      Boykin •& Boykin and Edwards <6 Edwards, for defendants.
   Bell, Justice.

The argument for the plaintiff in error is based chiefly on the contention that the defendant in error Spence, the purchaser at the administrator’s sale, is bound by the doctrine of caveat emptor. The only authorities cited are in reference to this doctrine. We do not think the plaintiff in error is in position to invoke this rule of law. In the proceeding brought by Spence, the plaintiff in error and a sister, Sarah Bainey, alleged in their answer that “they have not agreed to accept any part of said fund, for the reason they are owners of said land, and they admit said sale was void; . . these defendants say that they are rightfully and legally in possession of the land described in said petition, being joint owners of the same along with - [other named heirs' at law of their mother] under a warranty .deed from their grandmother, Ann Williamson, to said property, of record in . . the clerk’s office . . in which deed Mary Ann Walker had only a life-interest, said property reverting to these defendants at her death; that the said Mary Ann Walker is dead, and said defendants are in legal possession of said property.” As appears from Rainey v. Spence, supra, the trial -court construed the deed to Mary Ann Eeese [Walker] as conveying to her- the fee-simple title to the land involved, and ordered the sheriff to place Spence-in possession, of this land. The defendants in - that case, Eeese and .his sister, excepted to this judgment, and this court reversed- the lower court’s construction of the deed in question, holding that Mary Ann Walker took only a life-estate thereunder, and.that at her-death title thereto vested in her children, of whom- Cornelius Eeese was one, thus upholding the contention of Cornelius Eeese that he and his sister were in “legal possession of said property” as tenants in common with the other remaindermen .under, the 'deed as construed by this court. Under that decision, which was in a-.case brought to this court by Cornelius Eeese and Sarah Eainey, the deed from the administrator to Spence conveyed -no title, the intestate having none. Whether or not under these circumstances, without more, the principle of caveat emptor would have prevented the purchaser from refusing compliance with his bid, or from recovering the amount thereof after payment (Colbert v. Moore, 64 Ga. 502; Mercer v. Sager, 129 Ga. 123, 58 S. E. 1037), there are additional facts to be considered.

At the time of the administrator’s sale, Eeese and his sister were in possession of this land, holding it adversely to the administrator, and claiming it for themselves and others by purchase under the terms of the deed from Ann Williamson to their mother. While thus in possession, Eeese influenced Spence to purchase this land at the sale by the administrator, and later claimed title to an undivided interest therein under'the deed from his grandmother, which claim was finally adjudicated in his favor. The administrator is not resisting the claim of Spence, but asks the court for direction. In these circumstances it would be inequitable' and unjust as between Spence and Eeese, who are the .only contesting parties, for the court to compel the administrator to account to Eeese for any of the funds in his hands realized from the adminis-' trator’s sale of the land. Having joined with his sister in asserting that the deed conveyed only a life-estate to their mother, with remainder to her children, and having prevailed in that contention, Eeese is bound by that election, and can not afterwards, as against the purchaser, claim the proceeds of the sale in virtue of his relation as an heir at law of his mother; and having induced or influenced Spence to purchase the land as stated, he is not in position to invoke the doctrine of caveat emptor for the purpose of preventing Spence from recovering the proceeds from the administrator. We think the views here expressed are supported in principle by the rulings in Lamar v. Pearre, 90 Ga. 377 (5) (17 S. E. 92); Glore v. Scroggins, 124 Ga. 922, 928 (53 S. E. 690); Board of Education v. Day, 128 Ga. 156 (5), 166 (57 S. E. 359); McClellan v. McClellan, 135 Ga. 95 (68 S. E. 1025). The 'fact'that Eeese is now estopped to claim this land as against Spence does not alter the ease. Estoppel is negative, not creative. Parks v. Simpson, 124 Ga. 523, 524 (52 S. E. 616). “Its whole scope is to protect one from loss which, but for the estoppel, he could not escape, and should be limited to saving the party asserting the estoppel from loss.” Peacock v. Horne, 159 Ga. 707 (5) (126 S. E. 813).

The plaintiff in error does not assign error on the provision of the final judgment' excepted to which decreed one seventh interest in the land involved to be in Spence; so the correctness of that portion of the judgment is not for decision. The judgment complained of was not erroneous for any reason urged.

Judgment affirmed.

All the Justices concur.  