2020 Georgia Code
Title 24 - Evidence
Chapter 14 - Proof Generally
Article 2 - Presumptions and Estoppel
§ 24-14-26. Estoppels Defined; Enumeration Generally

1. Conclusive presumptions of law are termed estoppels; averments to the contrary of such presumptions shall not be allowed. Estoppels are not generally favored.
2. Estoppels include presumptions in favor of:
   1. A record or judgment unreversed;
   2. The proper conduct of courts and judicial officers acting within their legitimate spheres;
   3. The proper conduct of other officers of the law after the lapse of time has rendered it dangerous to open the investigation of their acts in regard to mere formalities of the law;
   4. Ancient deeds and other instruments more than 30 years old, when they come from proper custody and possession has been held in accordance with them;
   5. Recitals in deeds, except payment of purchase money, as against a grantor, sui juris, acting in his or her own right, and his or her privies in estate, in blood, and in law;
   6. A landlord's title as against his or her tenant in possession;
   7. Solemn admissions made in judicio; or
   8. Admissions upon which other parties have acted, either to their own injury or to the benefit of the persons making the admissions.

      Estoppels also include all similar cases where it would be more unjust and productive of evil to hear the truth than to forbear investigation.

(Code 1981, §24-14-26, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- For article on the effect of judicial estoppel on nolo contendere plea, see 13 Ga. L. Rev. 723 (1979).

ANALYSIS

• General Consideration
• Estoppel by Judgment
• Estoppel by Deed
• Equitable Estoppel

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 3700, former Code 1873, § 3753, former Code 1882, § 3753, former Civil Code 1895, § 5150, former Civil Code 1910, § 5736, former Code 1933, § 38-114, and former O.C.G.A. § 24-4-24 are included in the annotations for this Code section.

An estoppel is a preclusion in law, which prevents a person from alleging or denying a fact, in consequence of the person's own previous act, allegation, or denial of a contrary tenor. Davis v. Collier & Beers, 13 Ga. 485 (1853) (decided under former law).

Presumptions of law are sometimes conclusive, and an averment to the contrary will not be allowed. These are termed estoppels. Hood v. Duren, 33 Ga. App. 203, 125 S.E. 787 (1924) (decided under former Civil Code 1910, § 5736).

Difference between waiver and estoppel is slight but there is a difference. Boston Ins. Co. v. Barnes, 120 Ga. App. 585, 171 S.E.2d 626 (1969) (decided under former Code 1933, § 38-114).

- Estoppels are never resorted to, except when it would be more unjust and more productive of evil to hear the truth than to forbear the investigation. Patterson v. Collier, 75 Ga. 419, 54 Am. R. 472 (1885) (decided under former Code 1882, § 3753); Globe & Rutgers Fire Ins. Co. v. Atlantic & Gulf Shipping Co., 51 Ga. App. 904, 181 S.E. 310 (1935); Hollins v. State, 133 Ga. App. 183, 210 S.E.2d 354 (1974) (decided under former Code 1933, § 38-114);(decided under former Code 1933, § 38-114).

Estoppels are not favored. Wilkinson & Wilson v. Thigpen, 71 Ga. 497 (1883) (decided under former Code 1882, § 3753); Corporation of Royal Exch. Assurance v. Franklin, 158 Ga. 644, 124 S.E. 172, 38 A.L.R. 626 (1924); Hood v. Duren, 33 Ga. App. 203, 125 S.E. 787 (1924) (decided under former Civil Code 1910, § 5736);(decided under former Civil Code 1910, § 5736).

Essential ingredient of estoppel is detriment or prejudice to one who asserts the estoppel. There must be inducement to change one's position for the worse. United States v. Ferguson, 409 F. Supp. 393 (S.D. Ga. 1975), aff'd, 529 F.2d 999 (5th Cir. 1976) (decided under former Code 1933, § 38-114).

- In order to create an estoppel as authorized, the evidence must show that the party relying on such estoppel acted on the conduct of the opposite party to the relying party's detriment. Swift & Co. v. Hall, 94 Ga. App. 239, 94 S.E.2d 145 (1956) (decided under former Code 1933, § 38-114); State Farm Mut. Auto. Ins. Co. v. Penrow, 142 Ga. App. 463, 236 S.E.2d 275 (1977);(decided under former Code 1933, § 38-114).

- An estoppel arises when one makes representations to another concerning a matter, about which the other acts to one's injury or to the benefit of the person making the representations. Gostin v. Scott, 80 Ga. App. 630, 56 S.E.2d 778 (1949) (decided under former Code 1933, § 38-114); Usry v. Hadden, 87 Ga. App. 710, 75 S.E.2d 275 (1953); Walker v. Sutton, 222 Ga. App. 638, 476 S.E.2d 34 (1996) (decided under former Code 1933, § 38-114);(decided under former O.C.G.A. § 24-4-24).

- Since the whole doctrine of estoppel is a creature of equity and governed by equitable principles, it necessarily follows that the party who claims the benefit of an estoppel must not only have been free from fraud in the transaction, but must have acted with good faith and reasonable diligence; otherwise, no equity will arise in that party's favor. Bachrodt Realty Corp. v. Walker, 237 Ga. 696, 229 S.E.2d 455 (1976) (decided under former Code 1933, § 38-114).

- Estoppels must be mutual. Strangers can neither take advantage of, nor be bound by an estoppel. Its binding effect is between the immediate parties, their privies in blood, in law and by estate. Howard v. Perkins, 229 Ga. 279, 191 S.E.2d 46 (1972) (decided under former Code 1933, § 38-114).

- Party is not estopped from denying any fact which is recited in a legislative act. Dougherty v. Bethune, 7 Ga. 90 (1849) (decided under former Code 1933, § 38-114); Thornton v. Lane, 11 Ga. 459 (1852);(decided under former Code 1933, § 38-114).

- As between individuals, when no question of the general welfare of society or public policy is involved, the principle of estoppel runs throughout the law. Although an act be unconstitutional and void, it will operate as an estoppel upon the party applying for the estoppel, and procuring the estoppel's passage and accepting the estoppel's benefits. Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818 (1944) (decided under former Code 1933, § 38-114).

- Summary judgment in favor of a psychiatrist in a consultant's breach of an oral contract claim was proper as the oral assumption by the psychiatrist of the debts of the medical practice that the psychiatrist purchased, including the consultant's fees, was barred by the Statute of Frauds, O.C.G.A. § 13-5-30(2), because it was not in writing; further, as it was conceded that the agreement was secondary in nature and not an original undertaking, claims that it was established pursuant to former O.C.G.A. § 24-4-24 lacked merit. Grumet v. Bunt, 279 Ga. App. 728, 632 S.E.2d 486 (2006) (decided under former O.C.G.A. § 24-4-24).

Waiver or estoppel defense is not available in a case involving only violations of Georgia and/or federal securities laws. Jones v. Miles, 656 F.2d 103 (5th Cir. 1981) (decided under former Code 1933, § 38-114).

Estoppel by Judgment

Scope of estoppel.

- Doctrine of estoppel by judgment is applied only as to such matters within the scope of the pleadings in the previous litigation as necessarily had to be adjudicated in order for the previous judgment or decree to be rendered, or as to such matters within the scope of the pleadings as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined. Slaughter v. Slaughter, 190 Ga. 229, 9 S.E.2d 70 (1940) (decided under former Code 1933, § 38-114); Mimms v. Sisk Decorating Co., 156 Ga. App. 572, 275 S.E.2d 148 (1980);(decided under former Code 1933, § 38-114).

Estoppel by judgment occurs only as to such matters as were necessarily or actually adjudicated in the former litigation. Greyhound Lines v. Cobb County, 523 F. Supp. 422 (N.D. Ga. 1981), aff'd, 681 F.2d 1327 (11th Cir. 1982) (decided under former O.C.G.A. § 24-14-26).

- Under the doctrine of res judicata, whenever there has been a judgment by a court of competent jurisdiction in a former litigation between the same parties, based upon the same cause of action as a pending litigation, the litigants are bound to the extent of all matters put in issue or which under the rules of law might have been put in issue by the pleadings in the previous litigation. A somewhat different rule applies in regard to the doctrine of estoppel by judgment since the latter doctrine has reference to previous litigation between the same parties based upon a different cause of action. In the latter case, there is an estoppel by judgment only as to such matters as were necessarily or actually adjudicated in the former litigation; that is to say, there is an estoppel by judgment only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or as to such matters, within the scope of those pleadings, as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined. Harvey v. Wright, 80 Ga. App. 232, 55 S.E.2d 835 (1949) (decided under former Code 1933, § 38-114).

- Estoppels apply only as between parties and privies to the suit or litigation. Wilkinson & Wilson v. Thigpen, 71 Ga. 497 (1883) (decided under former Code 1882, § 3753).

- One who was physically present at a trial, but took no part therein, was not bound by a judgment in a case to which one was not a party. Calhoun v. Williamson, 76 Ga. App. 91, 45 S.E.2d 87 (1947) (decided under former Code 1933, § 38-114).

- There is a presumption in favor of the validity of a conviction and sentence imposed upon the accused and the burden of overcoming that presumption in a habeas corpus proceeding is on the accused. Cobb v. Dutton, 222 Ga. 11, 148 S.E.2d 399 (1966) (decided under former Code 1933, § 38-114); Dutton v. Parker, 222 Ga. 532, 150 S.E.2d 833 (1966); Dutton v. Morris, 222 Ga. 595, 151 S.E.2d 125 (1966) (decided under former Code 1933, § 38-114); Beavers v. Smith, 227 Ga. 344, 180 S.E.2d 717 (1971); Smith v. Brown, 228 Ga. 584, 187 S.E.2d 142 (1972) (decided under former Code 1933, § 38-114); Brown v. Holland, 228 Ga. 628, 187 S.E.2d 246 (1972); Burton v. Caldwell, 228 Ga. 795, 187 S.E.2d 900 (1972) (decided under former Code 1933, § 38-114); Caldwell v. Beard, 232 Ga. 701, 208 S.E.2d 564 (1974);(decided under former Code 1933, § 38-114);(decided under former Code 1933, § 38-114);(decided under former Code 1933, § 38-114);(decided under former Code 1933, § 38-114).

- When the defendant does not request that the transcript of evidence of the trial be sent up on appeal, the verdict and judgment are presumed to be valid. Hiller v. Culbreth, 139 Ga. App. 351, 228 S.E.2d 374 (1976) (decided under former Code 1933, § 38-114).

- Defendant's testimony that defendant was not present during defendant's trial but was in the judge's office was not sufficient to overcome the presumption in favor of the conviction as the able counsel representing the defendant may have with defendant's consent or in defendant's presence waived defendant's presence in the courtroom, which the defendant could have done; or the prisoner may have voluntarily absented oneself from the courtroom during the trial, in which case the defendant would not be allowed to take advantage of defendant's own laches. Dutton v. Morris, 222 Ga. 595, 151 S.E.2d 125 (1966) (decided under former Code 1933, § 38-114).

- In a criminal prosecution, application of the doctrine of judicial estoppel was inappropriate; further, in opposing the defendant's motion for mistrial based on statements made by two prospective jurors regarding the sentences the perpetrators had received, the state did not adopt a contrary position to the state's motion in limine because the state did not solicit or capitalize on the prospective jurors' comments. Purnell v. State, Ga. App. , 843 S.E.2d 637 (2020).

- Presumption can no longer be indulged that since there is a presumption in favor of the validity of a sentence, especially when based on a plea of guilty, the burden of overcoming this is upon the prisoner. Purvis v. Connell, 227 Ga. 764, 182 S.E.2d 892 (1971) (decided under former Code 1933, § 38-114).

- When a judgment is relied on to establish an estoppel, the burden is on the party relying on the former judgment to prove that the judgment is valid, and that the particular matter in controversy was necessarily or actually determined in the former litigation. Hunter v. Associated Mtg. Cos., 183 Ga. 506, 188 S.E. 700 (1936) (decided under former Code 1933, § 38-114); Gormley v. Cleaveland, 187 Ga. 457, 200 S.E. 793 (1939); South Am. Managers, Inc. v. Reeves, 220 Ga. 493, 140 S.E.2d 201 (1965) (decided under former Code 1933, § 38-114); Allen v. Smith, 223 Ga. 265, 154 S.E.2d 605 (1967);(decided under former Code 1933, § 38-114);(decided under former Code 1933, § 38-114).

- When a decree is offered in evidence to establish any particular state of facts, or as an adjudication upon the subject matter, such decree is admissible only when accompanied by the entire record of the suit in which the decree was rendered. Holcombe v. Jones, 197 Ga. 825, 30 S.E.2d 903 (1944) (decided under former Code 1933, § 38-114).

- When the final order upon an appraiser's return recites that notice has been published "as required by law," and the entire record with respect to the year's support is on its face full and complete, the recital must be accepted as true, in the absence of aliunde evidence conclusively showing that it is in fact untrue. Southern Oldsmobile Co. v. Baker, 25 Ga. App. 580, 103 S.E. 826 (1920) (decided under former Civil Code 1910, § 5736).

- Decree made with the consent and at the instance of a party cannot be set aside by the party by bill of review, unless, by clerical error something has been inserted therein as by consent which had not been consented to. Murphy v. Mayor of Savannah, 73 Ga. 263 (1884) (decided under former Code 1882, § 3753).

- Under the doctrine of estoppel by judgment, a mandamus order requiring the defendants to issue to the plaintiff a permit to operate taxicabs, which on review by the Supreme Court was affirmed, is conclusive against the defendants in a subsequent proceeding for contempt. Settle v. McWhorter, 203 Ga. 93, 45 S.E.2d 210 (1947) (decided under former Code 1933, § 38-114).

- Doctrines of res judicata and estoppel by judgment are applicable to awards of the State Board of Workers' Compensation on all questions of fact in matters in which the board has jurisdiction. Mimms v. Sisk Decorating Co., 156 Ga. App. 572, 275 S.E.2d 148 (1980) (decided under former Code 1933, § 38-114).

- When the petition under consideration in the second suit arising from the same occurrence has already been held by the Court of Appeals on a previous appeal to state a cause of action for rescission of a contract of sale of a car based upon the fraud and deceit of the defendant, which judgment was not vacated, reversed, or modified and when the contents of the petition in the second suit are substantially the same as that of the previous action in which the plaintiff was nonsuited, it is error to dismiss the case on the ground that the plaintiff has made inconsistent elections as to the affirmance or repudiation of the contract in issue. McBurney v. Woodward, 86 Ga. App. 629, 72 S.E.2d 89 (1952) (decided under former Code 1933, § 38-114).

- Defendants were estopped from denying the character and name under which the defendants traded and obtained credit after judgment had been rendered against the defendants covering the transaction. Georgia Ice Co. v. Porter & Meakin, 70 Ga. 637 (1883) (decided under former Code 1882, § 3753).

- There is a presumption in favor of the regularity and legality of all proceedings in the superior court. Johnson v. Cleveland, 131 Ga. App. 560, 206 S.E.2d 704 (1974) (decided under former Code 1933, § 38-114); Bennett v. Adel Banking Co., 144 Ga. App. 282, 241 S.E.2d 23 (1977); Key v. State, 147 Ga. App. 800, 250 S.E.2d 527 (1978) (decided under former Code 1933, § 38-114);(decided under former Code 1933, § 38-114).

- Presumption of law is that a judicial officer, or court, has acted legally within the officer's proper sphere. Nashville, C. & St. L. Ry. v. Ham, 78 Ga. App. 403, 50 S.E.2d 831 (1948) (decided under former Code 1933, § 38-114).

- In the absence of any evidence to the contrary, it is presumed that a trial judge's conduct in performing the judge's official duties was proper. Riggins v. State, 159 Ga. App. 791, 285 S.E.2d 579 (1981) (decided under former Code 1933, § 38-114).

- In the absence of any evidence in the record as to who actually excused a juror in question and whether the person who excused the juror was one of the two persons authorized to do so, it is presumed that the trial court and the court's officers performed their duties properly. Thomas v. State, 174 Ga. App. 560, 330 S.E.2d 777 (1985) (decided under former O.C.G.A. § 24-4-24).

- In reviewing judgments of the lower court, the Court of Appeals presumes that such order or judgment is supported by every fact essential to make it valid and binding. Pichulik v. Simpson, 123 Ga. App. 604, 181 S.E.2d 925 (1971) (decided under former Code 1933, § 38-114); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Echols, 138 Ga. App. 593, 226 S.E.2d 742 (1976);(decided under former Code 1933, § 38-114).

- There is a presumption in favor of the regularity and legality of all proceedings in the courts, but circumstances attending a purely ministerial act may be investigated, even though the person performing the act is a judicial officer. Vaughan v. Car Tapes, Inc., 135 Ga. App. 178, 217 S.E.2d 436 (1975) (decided under former Code 1933, § 38-114).

- Presumption in favor of the regularity of judgments and proper conduct of courts and judicial officers set forth in statute is rebuttable; the ordinary rules of evidence apply in such rebuttal. Balkcom v. Vickers, 220 Ga. 345, 138 S.E.2d 868 (1964), overruled on other grounds, Reed v. State, 291 Ga. 10, 727 S.E.2d 112 (2012) (decided under former Code 1933, § 38-114).

Estoppel by Deed

Estoppel cannot be basis of title to land.

- Davis v. Auerbach, 78 Ga. App. 575, 51 S.E.2d 527 (1949) (decided under former Code 1933, § 38-114).

Although former prohibits O.C.G.A. § 24-4-24 prohibits a grantor from denying recitals contained within the grantor's deed, it was insufficient to establish title. Yaali, Ltd. v. Barnes & Noble, Inc., 269 Ga. 695, 506 S.E.2d 116 (1998) (decided under former O.C.G.A. § 24-4-24).

- Recitals in deeds bind not only the parties thereto, but their privies in estate. Atlanta Land & Loan Co. v. Haile, 106 Ga. 498, 32 S.E. 606 (1899) (decided under former Code 1882, § 3753); Wyley Loose Leaf Co. v. Bird, 159 Ga. 246, 125 S.E. 496 (1924); Doe v. Newton, 171 Ga. 418, 156 S.E. 25 (1930) (decided under former Civil Code 1910, § 5736); Williams v. Harris, 207 Ga. 576, 63 S.E.2d 386 (1951); Bell v. Studdard, 220 Ga. 756, 141 S.E.2d 536 (1965) (decided under former Civil Code 1910, § 5736);(decided under former Code 1933, § 38-114);(decided under former Code 1933, § 38-114).

- When the grantor filed a sworn bill, alleging that the grantor made an instrument as a deed, and that the instrument was procured by fraud, and sought to have the instrument canceled or reformed, after the grantor's death, the grantor's administrator, who was made a party in the grantor's stead, was estopped from denying the character of the paper as a deed. Youngblood v. Youngblood, 74 Ga. 614 (1885) (decided under former Code 1882, § 3753).

- In order to create an estoppel, the recital in the deed must be specific, and an estoppel by a recital in a deed will not extend beyond the specific fact contained in the recital. Toland v. Brewster, 144 Ga. 236, 86 S.E. 1089 (1915) (decided under former Civil Code 1910, § 5736); Doe v. Newton, 171 Ga. 418, 156 S.E. 25 (1930);(decided under former Civil Code 1910, § 5736).

- When the statement in a deed as to its consideration is merely by way of recital, the actual consideration of the deed is subject to explanation; but if the consideration is referred to in the deed in such a way as to make it one of the terms or conditions of the contract, it cannot be varied by parol. Sikes v. Sikes, 162 Ga. 302, 133 S.E. 239 (1926) (decided under former Civil Code 1910, § 5736); Shapiro v. Steinberg, 179 Ga. 18, 175 S.E. 1 (1934);(decided under former Code 1933, § 38-114).

Recital of payment of the purchase-money in a deed or other contract does not estop the maker from denying the fact and proving the contrary. McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945) (decided under former Code 1933, § 38-114).

- Former statute would not allow an administrator to dispute the truth of a solemn recital contained in the administrator's deed that the property was exposed for sale and that the highest bid was a stated sum, and that the administrator held the property therefor. The administrator may deny that the administrator received the proceeds of the sale, but cannot deny the truth of the recital that the property was sold at public outcry for a stated sum. Gammage v. Perry, 29 Ga. App. 427, 116 S.E. 126 (1923) (decided under former Civil Code 1910, § 5736).

- An executrix who duly and legally advertises and sells the land of an estate and makes a deed thereto in accordance with the sale cannot avoid liability to the heirs or creditors of the estate by showing that the executrix did not in fact collect the proceeds of the sale. Carder v. Arundel Mtg. Co., 47 Ga. App. 309, 170 S.E. 312 (1933) (decided under former Civil Code 1910, § 5736).

- One who makes a usurious note and secures the note's payment by executing a deed to realty, the usury not appearing upon the face of the papers is, as against another whom one induces to purchase the note by representing that it and the deed "are valid and all right" (the purchase being made in good faith and in ignorance of the usury), estopped from setting up the usury in the transaction. Henry v. McAllister, 99 Ga. 557, 26 S.E. 469 (1896) (decided under former Civil Code 1895, § 5150).

- Plaintiff was not estopped by acquiescence from seeking to enjoin violations of restrictive covenants by defendants merely because the same covenants were previously violated by other and different parties, by more remote sales. Dooley v. Savannah Bank & Trust Co., 199 Ga. 353, 34 S.E.2d 522 (1945) (decided under former Code 1933, § 38-114).

- Grantee who accepts a deed to the property granted is estopped to deny the truth of a recital that the grantor had previously granted an easement or interest in the property to another person. Toland v. Brewster, 144 Ga. 236, 86 S.E. 1089 (1915) (decided under former Civil Code 1910, § 5736).

- When an owner of land sells a part of the land in lots for residential purposes, the sales being made with reference to a plat by which another part of the land is designated as a park, and when the purchasers in buying rely upon the plat, the seller is estopped from asserting a claim adverse to the right of the purchasers, or their assigns, to have the land restricted to use as a park and to share such use. Caffey v. Parris, 186 Ga. 303, 197 S.E. 898 (1938) (decided under former Code 1933, § 38-114).

- When the grantor in a first security deed reacquired the property by purchasing the property at a sale under a power contained in such deed, a junior security deed made to another by the same grantor immediately attached as a first claim upon the property, and constituted an encumbrance thereon as against a subsequent grantee of such purchaser, notwithstanding the second security deed may show upon the deed's face that the deed is a junior deed. Federal Land Bank v. Bank of Lenox, 192 Ga. 543, 16 S.E.2d 9 (1941) (decided under former Code 1933, § 38-114).

- If claimant at time of execution of mortgage stated to the mortgagee that property belonged to her husband, the mortgagor, and he acted thereon in making the loan and taking the mortgage, she would be estopped from asserting her title to the property as against the plaintiff, the mortgagee. Tanner v. Tanner, 52 Ga. App. 460, 183 S.E. 666 (1936) (decided under former Code 1933, § 38-114).

Exception of interest in land contained in a deed is notice to the grantee and the grantee's successors. Brown v. Mathis, 201 Ga. 740, 41 S.E.2d 137 (1947) (decided under former Code 1933, § 38-114).

- Because at the time the appellee executed the deed to the appellant the appellee had no title to the easement which the appellee attempted to convey to appellant, the appellant's claim of title by estoppel was completely without merit. Elrod v. Elrod, 272 Ga. 188, 526 S.E.2d 339 (2000) (decided under former O.C.G.A. § 24-4-24).

Equitable Estoppel

1. Solemn Admissions in Judicio

- Solemn admission in judicio is, at least until withdrawn after notice, conclusively binding upon the parties thereto. Tribble v. State, 89 Ga. App. 593, 80 S.E.2d 711 (1954) (decided under former Code 1933, § 38-114); Spector v. Model Constr. Co., 95 Ga. App. 14, 96 S.E.2d 900 (1957); State Farm Mut. Auto. Ins. Co. v. Anderson, 107 Ga. App. 348, 130 S.E.2d 144 (decided under former Code 1933, § 38-114); 219 Ga. 211, 132 S.E.2d 556 (1963); McDonald v. Hester, 115 Ga. App. 740, 155 S.E.2d 720 (1967), cert. dismissed,(decided under former Code 1933, § 38-114);(decided under former Code 1933, § 38-114).

Daughter who admitted that assets she took from her grandmother still belonged to her grandmother was not allowed to subsequently claim that she received the assets as a loan, and the probate court properly denied the daughter's motion for an order requiring the grandmother's guardian to return assets the guardian seized from the daughter, based on the daughter's claim that she has a legal right to the property. In re McCool, 267 Ga. App. 445, 600 S.E.2d 403 (2004) (decided under former O.C.G.A. § 24-4-24).

- Admissions in judicio apply only to facts in litigations in a particular case. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980) (decided under former Code 1933, § 38-114).

- When a person has assumed a certain position in a litigation, and has succeeded in maintaining that position through a judgment or decision of the court, or through the acquiescence of the opposite party, to the detriment of that party, the person will not be permitted to assume a contrary position in a subsequent suit between the parties relating to the same subject-matter. Florence, Phillips & Co. v. Newsome, 26 Ga. App. 501, 106 S.E. 619 (1921) (decided under former Civil Code 1910, § 5736).

- Admissions made in one suit do not estop a witness from testifying differently in a case between other parties. Wilkinson & Wilson v. Thigpen, 71 Ga. 497 (1883) (decided under former Code 1882, § 3753).

- Party to a suit or proceeding will not be allowed to disprove an admission made in the party's pleadings, without withdrawing the pleading from the record. Duke v. Ayers, 163 Ga. 444, 136 S.E. 410 (1927) (decided under former Civil Code 1910, § 5736); Anderson v. Oakley, 133 Ga. App. 758, 212 S.E.2d 875 (1975);(decided under former Code 1933, § 38-114).

- Trial court properly granted a seller's motion for partial summary judgment, and denied the escrow agent's motion to dismiss, in the seller's suit to recover the earnest money deposited by the buyers as the buyers admitted in their answer that the buyers knew the identity and location of the property, and although the buyers later amended their answer to raise a Georgia Statute of Frauds, O.C.G.A. § 13-5-30, defense, the buyers never withdrew their admission, and the buyers and the escrow agent were bound by the admission; the admission constituted a solemn admission in judicio under former O.C.G.A. § 24-4-24(b)(7), and created a conclusive presumption of law under former § 24-4-24(a). Nhan v. Wellington Square, LLC, 263 Ga. App. 717, 589 S.E.2d 285 (2003) (decided under former O.C.G.A. § 24-4-24).

- District attorney was bound by an admission in judicio in a forfeiture complaint since the complaint admitted that the claimants were the purported owners or interest holders of real and personal property sought to be forfeited, and went on to recite the recordation of the book and page of the deed in the superior court clerk's records that listed claimants as owners of the property. Bell v. State, 234 Ga. App. 693, 507 S.E.2d 535 (1998) (decided under former O.C.G.A. § 24-4-24).

Civil Practice Act did not wipe out or destroy the law in Georgia to the effect that a party to an action is bound by material allegations made in the party's pleadings so long as the allegations remain in the party's pleadings, and the plaintiff's contradictory pleadings, if any, are to be construed in favor of the defendant. Anderson v. Oakley, 133 Ga. App. 758, 212 S.E.2d 875 (1975) (decided under former Code 1933, § 38-114).

- Estoppels by admissions made in pleading apply only between parties and privies to the suit or litigation in which the admissions relied on as an estoppel were made. Murray County v. Pickering, 198 Ga. 354, 31 S.E.2d 722 (1944) (decided under former Code 1933, § 38-114).

Admissions contained in stricken plea may be introduced in evidence by the opposite party. Such admissions when thus made are to be taken as true, because the admissions are asserted by the party personally; and while the party may withdraw the admissions formally from the pleadings, the party cannot by a mere withdrawal avoid the effect of the admissions since the admissions may still be used as evidence against the party. Stallings v. Britt, 204 Ga. 250, 49 S.E.2d 517 (1948) (decided under former Code 1933, § 38-114).

- Defendant who in a plea has admitted a prima facie case in favor of the plaintiff for the purpose of obtaining the opening and conclusion in the case cannot, after having failed to carry the burden thus assumed, make an amendment withdrawing such admission and thus preclude the plaintiff from the right to rely upon the admission contained in the original plea. Fisher v. George S. Jones Co., 108 Ga. 490, 34 S.E. 172 (1899) (decided under former Civil Code 1895, § 5150).

An agreed statement of facts entered into between the parties to an action for the purpose of dispensing with proof on some or all of the issues presented by the pleadings constitutes a solemn admission in judicio, and so long as the admission remains in the case, the admission is conclusive so as to preclude either party from introducing evidence to disprove or contradict the admission. United States Fid. & Guar. Co. v. Clarke, 187 Ga. 774, 2 S.E.2d 608 (1939) (decided under former Code 1933, § 38-114); State Farm Mut. Auto. Ins. Co. v. Anderson, 107 Ga. App. 348, 130 S.E.2d 144; 219 Ga. 211, 132 S.E.2d 556 (1963), cert. dismissed, McDonald v. Hester, 115 Ga. App. 740, 155 S.E.2d 720 (1967) (decided under former Code 1933, § 38-114); Holland-America Line v. United Coops., 124 Ga. App. 375, 183 S.E.2d 620 (1971);(decided under former Code 1933, § 38-114);(decided under former Code 1933, § 38-114).

- In criminal cases, the defendant's agreed statement of facts upon which a case is to be tried constitutes a solemn admission in judicio and direct evidence of the fact stated. Tribble v. State, 89 Ga. App. 593, 80 S.E.2d 711 (1954) (decided under former Code 1933, § 38-114).

Defendant's stipulation to the elements of the criminal charge against defendant, including venue, reserving for appeal only the issue of the sufficiency of the search warrant affidavit, was conclusively binding upon defendant and waived defendant's right to raise the issue of venue on appeal. Sanders v. State, 252 Ga. App. 609, 556 S.E.2d 505 (2001) (decided under former O.C.G.A. § 24-4-24).

- On a new trial of a case, either party may, as a matter of right, withdraw from and repudiate an agreed statement of facts had at the former trial, by giving proper and timely notice of such intended action to the opposite party, provided the opposite party has not been injured thereby. In such case, the agreed statement of facts is admissible in evidence against the party making the statement, in favor of the opposite party. It is not, however, absolutely binding and conclusive upon the party by whom the statement was signed, but it is that party's right to disprove, rebut, or explain any statement therein contained. United States Fid. & Guar. Co. v. Clarke, 187 Ga. 774, 2 S.E.2d 608 (1939) (decided under former Code 1933, § 38-114).

Statements of counsel during the trial of a case may be regarded as admissions in judicio. Gregory v. Star Enters., Inc., 122 Ga. App. 12, 176 S.E.2d 241 (1970) (decided under former Code 1933, § 38-114).

Alleged admission in judicio by investor's attorney in prior action that investor's note and agreement were enforceable did not harm investor's case as the investor presented evidence that the investor owed nothing under the note and agreement; also, the corporation could not rely on that admission since issue preclusion based upon admissions in judicio was based on the equitable doctrine of estoppel and the alleged statement was made in reliance on fraudulent representations made by the three individual principals to which equity did not apply. Kothari v. Patel, 262 Ga. App. 168, 585 S.E.2d 97 (2003) (decided under former O.C.G.A. § 24-4-24).

- If, in discussing a case, every suggestion or passing statement of each attorney touching what might be the effect of a deed, will, or other instrument would irrevocably fix that construction upon it, the courts might be much hampered in placing a proper judicial construction on the paper and might sometimes be compelled to construe the same clause in very conflicting ways, none of which might be the correct way. The eloquence of the advocate may sometimes soar a little without being weighted down with the fear of estoppel. Orkin Exterminating Co. v. Gill, 222 Ga. 760, 152 S.E.2d 411 (1966) (decided under former Code 1933, § 38-114).

- Party testifying in the party's own behalf is not entitled to a finding in the party's favor if that version of the party's testimony which is most unfavorable to the party shows that the party is not entitled to recover. Norair Eng'r Corp. v. Saint Joseph's Hosp., 147 Ga. App. 595, 249 S.E.2d 642 (1978) (decided under former Code 1933, § 38-114).

- Complete confession from the witness stand of participation in the crime provides more than sufficient evidence to convict. Jenkins v. State, 237 Ga. 493, 228 S.E.2d 877 (1976) (decided under former Code 1933, § 38-114).

- When in a mandamus proceeding plaintiffs in error took position that bill of exceptions was certified conditionally in order that the trial court might have jurisdiction to sign another certificate, plaintiffs are later estopped to contend that the certificate is unconditional. NAACP v. Williams, 98 Ga. App. 74, 104 S.E.2d 923 (1958), cert. denied, 359 U.S. 550, 79 S. Ct. 947, 3 L. Ed. 2d 1023 (1959) (decided under former Code 1933, § 38-114).

- Once the assessor has made the award in a condemnation proceeding the condemnor is estopped from taking a position contrary to its solemn admissions in judicio and dismissing the suit. Housing Auth. v. Mercer, 123 Ga. App. 38, 179 S.E.2d 275 (1970) (decided under former Code 1933, § 38-114).

- None of insured's testimony as to whether the nephew of the insured was covered by a motor vehicle policy at a time of the vehicle accident constituted an admission in judicio binding upon the insurer. Allstate Ins. Co. v. Sapp, 223 Ga. App. 443, 477 S.E.2d 869 (1996) (decided under former O.C.G.A. § 24-4-24).

2. Estoppel by Other Conduct

Elements.

- In order to constitute estoppel by conduct, there must concur: first, a false representation or concealment of facts; second, it must be within the knowledge of the party making the one or concealing the other; third, the person affected thereby must be ignorant of the truth; fourth, the person seeking to influence the conduct of the other must act intentionally for that purpose; and, fifth, persons complaining shall have been induced to act by reason of such conduct of the other. Calhoun v. Williamson, 76 Ga. App. 91, 45 S.E.2d 87 (1947) (decided under former Code 1933, § 38-114).

Origin of estoppel in pais is found in the doctrine of equity that if a representation be made to another who deals upon the faith of the representation, the former must make the representation good if the former knew or was bound to know the representation to be false. Elliott v. Keith, 102 Ga. 117, 29 S.E. 155 (1897) (decided under former Civil Code 1895, § 5150); Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937);(decided under former Code 1933, § 38-114).

Basis of equitable estoppel is to promote the equity and justice of the individual case by preventing a party from asserting the party's rights under a general technical rule of law, when the party has so conducted oneself that it would be contrary to equity and good conscience for that party to allege and prove the truth. Davis v. Auerbach, 78 Ga. App. 575, 51 S.E.2d 527 (1949) (decided under former Code 1933, § 38-114).

- One invoking the conduct of another as constituting an estoppel in pais must show that one has acted thereon to one's detriment, or has been hurt thereby, before one can successfully urge such conduct as an estoppel in pais. Tompkins v. Philips, 12 Ga. 52 (1852) (decided under former law); Gaither v. Gaither, 23 Ga. 521 (1857); Rowe v. Sam Weichselbaum Co., 3 Ga. App. 504, 60 S.E. 275 (1908) (decided under former law); Hancock v. King, 133 Ga. 734, 66 S.E. 949 (1910); Union Brokerage Co. v. Beall Bros., 30 Ga. App. 748, 119 S.E. 533 (1923) (decided under former Civil Code 1895, § 5150); Kaufman v. Young, 32 Ga. App. 135, 122 S.E. 822 (1924);(decided under former Civil Code 1895, § 5150);(decided under former Civil Code 1910, § 5736);(decided under former Civil Code 1910, § 5736).

- Operation of this principle is not direct so as to create a new right in the opposite party, but primarily indirect and negative against the party making the statement, precluding the party and the party's privies from denying the truth of the statement or basing a defense on the statement's untruth. Hood v. Duren, 33 Ga. App. 203, 125 S.E. 787 (1924) (decided under former Civil Code 1910, § 5736); Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937);(decided under former Code 1933, § 38-114).

- While two contracting parties may agree that waivers must be in writing, there is no authority that holds the parties may agree that an estoppel may not arise against one or the other party if one's conduct is such as to amount to estoppel. Boston Ins. Co. v. Barnes, 120 Ga. App. 585, 171 S.E.2d 626 (1969) (decided under former Code 1933, § 38-114).

- 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 to file a replication, this rule does not apply when the plaintiff relies upon estoppel in order to defeat a defense raised by the defendant in the defendant's 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, nor, if the elements and facts of an estoppel are set out, is it necessary that the pleader should have used the word "estoppel." Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937) (decided under former Code 1933, § 38-114).

Estoppel is question for jury, unless it is unequivocally established. Tune v. Beeland, 131 Ga. 528, 62 S.E. 976 (1908) (decided under former Civil Code 1895, § 5150); Corporation of Royal Exch. Assurance v. Franklin, 158 Ga. 644, 124 S.E. 172, 38 A.L.R. 626 (1924); Calhoun v. Williamson, 76 Ga. App. 91, 45 S.E.2d 87 (1947) (decided under former Civil Code 1910, § 5736); Eiberger v. West, 247 Ga. 767, 281 S.E.2d 148 (1981);(decided under former Code 1933, § 38-114);(decided under former Code 1933, § 38-114).

Estoppel is usually an issue of fact to be decided by the jury. Eiberger v. West, 247 Ga. 767, 281 S.E.2d 148 (1981) (decided under former Code 1933, § 38-114).

- Rule which prevents one who has given a reason for one's conduct and decision in a matter from placing one's conduct upon another and different ground after litigation has begun is but an application of the principle of estoppel in pais, and applies only when one's conduct has caused another to act respecting the matter to the injury and detriment of the latter, and when the latter would be placed at an inequitable disadvantage, should the former be allowed to rely upon a ground other than that first urged as a reason for one's conduct and decision in the matter. Globe & Rutgers Fire Ins. Co. v. Atlantic & Gulf Shipping Co., 51 Ga. App. 904, 181 S.E. 310 (1935) (decided under former Code 1933, § 38-114).

- When one under a duty to speak fails to do so, one is thereafter estopped to deny what one's silence imports. Cheek v. J. Allen Couch & Son Funeral Home, 125 Ga. App. 438, 187 S.E.2d 907 (1972) (decided under former Code 1933, § 38-114).

- Admissions by one, upon which others have acted, either to their own injury or for the benefit of the person making the admissions, are deemed estoppels and even minors may be estopped by their admissions from denying the truth of the admissions, or by their silence when the circumstances call for a disclosure of their claims or their rights, provided the minor has arrived at those years of discretion when a fraudulent intent can be reasonably imputed to the minor; a married woman has no legal rights that can exempt her from this rule of law and justice; that is, the law of estoppel in pais. Wootten v. Braswell, 48 Ga. App. 312, 172 S.E. 679 (1934) (decided under former Code 1933, § 38-114).

- Defendant is estopped from exercising one's privilege of avoiding a fair and reasonable contract upon the ground of defendant's minority at the time the agreement was made when it appears that the defendant has consumed the contract's irrestorable benefits; and when it appears that the plaintiff, dealing in good faith and being free from negligence was induced to act to plaintiff's injury by reason of the false and fraudulent representation of the defendant with respect to defendant's apparent majority. Hood v. Duren, 33 Ga. App. 203, 125 S.E. 787 (1924) (decided under former Civil Code 1910, § 5736).

- Person may be estopped from questioning the existence or effect of a contract, the existence of which the person has asserted to the other party, to the person's own benefit or the injury of the other. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937) (decided under former Code 1933, § 38-114).

- Party is estopped from complaint of the grant of the nonsuit when it appears, from the record, that a nonsuit was granted upon motion of the party's counsel. Patterson v. Sams, 2 Ga. App. 755, 59 S.E. 18 (1907) (decided under former Civil Code 1895, § 5150).

- False and fraudulent representations as to the validity of the title to personalty, acted on by another to that person's injury, will estop the maker of the representations from setting up title to the property. Roberts v. Davis, 72 Ga. 819 (1884) (decided under former Code 1882, § 3753).

- Mere silence by one who stands by and sees another make a gift to a third person of a chattel in which one has an interest will not alone estop one from asserting one's title against the donee. Hartz v. Hartz, 144 Ga. 98, 86 S.E. 220 (1915) (decided under former Civil Code 1910, § 5736).

- One who by acts or declarations induces another to buy property, as the property of a third person, is thereby estopped from setting up title in themselves to that property; but to make such acts or declarations a bar, it should appear that the acts or declarations were known to the purchaser, and that the purchaser acted upon the acts or declarations, and not upon the purchaser's own knowledge or judgment. McCune v. McMichael, 29 Ga. 312 (1859) (decided under former Code 1882, § 3753).

- Though an instrument may be "absolutely void," this does not imply that there is no limit to the time within which its void character may be insisted upon. Truth is always precious, but it may become too late to assert it. It may be "more unjust and productive of more evil to hear the truth than to forbear the investigation". Sutton v. Aiken, 62 Ga. 733 (1879) (decided under former Code 1873, § 3753).

Acceptance of insurance premiums and placing the money in the general funds of the defendant insurer amounted to such an unconditional acceptance as to estop the defendant to contend that the insured's policy was not in force. Progressive Fire Ins. Co. v. Morrison, 72 Ga. App. 473, 34 S.E.2d 173 (1945) (decided under former Code 1933, § 38-114); Georgia Cas. & Sur. Co. v. Rainwater, 132 Ga. App. 170, 207 S.E.2d 610 (1974);(decided under former Code 1933, § 38-114).

- Insurer may be estopped from relying on a provision in a policy that the agent or officer cannot waive or change the insurance unless by writing attached, when the agent consents to changes in the policy, but fails to make the writing. Corporation of Royal Exch. Assurance v. Franklin, 158 Ga. 644, 124 S.E. 172, 38 A.L.R. 626 (1924) (decided under former Civil Code 1910, § 5736).

- Insurer is estopped to deny coverage under a clause which provided that a lack of occupancy for more than 60 days would void coverage, since the insurer, through the insurer's agent, knew of the lack of occupancy when the building was first insured, and at all times thereafter. Boston Ins. Co. v. Barnes, 120 Ga. App. 585, 171 S.E.2d 626 (1969) (decided under former Code 1933, § 38-114).

- Estoppel to contest the amount of a note does not result from paying part and obtaining an indefinite extension of time for payment of the balance. Long v. Lawson, 7 Ga. App. 460, 67 S.E. 123 (1910) (decided under former Civil Code 1895, § 5150).

- Maker of promissory notes who obtained from the holder an extension of time for the payment of the principal due on each note and, as a consideration therefor, pays the interest due on each of the notes, was precluded thereby from setting up that the holder was not the owner thereof. Such agreement, it was true, did not change the real title to the notes, but it bared the maker from contesting the ownership with the holder. Yarbrough v. Seagraves, 47 Ga. App. 436, 170 S.E. 553 (1933) (decided under former Civil Code 1910, § 5736).

Estoppel can lie to bar defense of usury. Eiberger v. West, 247 Ga. 767, 281 S.E.2d 148 (1981) (decided under former Code 1933, § 38-114).

When note requiring usury was prepared by a borrower and presented to an unwary lender doctrine of estoppel was applicable. Eiberger v. West, 247 Ga. 767, 281 S.E.2d 148 (1981) (decided under former Code 1933, § 38-114).

Silence by guarantors at time of renewing of corporate obligations estops them as a matter of law from asserting defenses of which they then had knowledge. Citizens & S. Nat'l Bank v. Yeager Enters., 247 Ga. 797, 279 S.E.2d 674 (1981) (decided under former Code 1933, § 38-114).

- When there is no evidence that the makers of a performance bond acted on any conduct or declarations of the surety in releasing a third party from liability for the bond premium, the surety was not estopped from maintaining an action on an application signed by the makers whereby the makers obligated themselves to pay the premium on the bond. Loftis Plumbing & Heating Co. v. American Sur. Co., 74 Ga. App. 590, 40 S.E.2d 667 (1946) (decided under former Code 1933, § 38-114).

- Sureties on county treasurer's bond are estopped from setting up by parol that the bond was delivered conditionally, the treasurer having a commission, and possession of the revenues in consequence of the bond. Lewis v. Board of Comm'rs, 70 Ga. 486 (1883) (decided under former Code 1882, § 3753).

Surety on bond to dissolve garnishment is estopped from denying that the garnishee had effects belonging to the defendants or that the garnishee was indebted to the defendants in a sum equal to the amount that might be recovered against the defendants. Nevin v. Fouche, 77 Ga. 47 (1886) (decided under former Code 1882, § 3753).

- Delivery of assets to parties, who were not entitled, was, to that extent, a devastavit, and the party entitled is not estopped by the party's acts of consenting to the distribution, from claiming of the administrator the party's full rights as heir-at-law. Davis v. Bagley, 40 Ga. 181, 2 Am. R. 570 (1869) (decided under former Code 1868, § 3700).

When chattels are mistakenly delivered to the vendee of realty subsequent to the sale thereof upon the vendee's representation that the chattels were included in the sale, when in fact the chattels were not so included, such delivery is not a waiver of the rights of the plaintiff to a recovery of the chattels upon plaintiff's ascertainment of the true state of facts, nor is the plaintiff estopped thereby from asserting title to the personalty. Gostin v. Scott, 80 Ga. App. 630, 56 S.E.2d 778 (1949) (decided under former Code 1933, § 38-114).

- When subcontractor and homeowner had an agreement subsequent to the original contract whereby subcontractor consented for homeowner to make payment for all work to the general contractor which payment was made, the subcontractor's action worked as an estoppel against the subcontractor. Hill v. Brooks, 133 Ga. App. 138, 210 S.E.2d 176 (1974) (decided under former Code 1933, § 38-114).

- One who borrows money from a building and loan association cannot set up, in defense to an action for the recovery of the money, that the loan was made in disregard of a bylaw prohibiting the making of loans to any persons other than those who have been members of the association for a stated period. Whatever may be the object of such a bylaw, one who obtains a benefit from a violation of the bylaw is estopped from taking any advantage of the fact that such violation occurred. Reynolds v. Georgia State Bldg. & Loan Ass'n, 102 Ga. 126, 29 S.E. 187 (1897) (decided under former Civil Code 1895, § 5150).

- Doctrine of estoppel would apply and forbid a dissatisfied creditor from in any manner interfering with or preventing the consummation of an agreement to turn a stock of goods over to a third person to sell for the benefit of creditors, to which one had been a consenting party. Stovall Co. v. Shepherd Co., 10 Ga. App. 498, 73 S.E. 761 (1912) (decided under former Civil Code 1910, § 5736).

- In suit by a sheriff upon a bid at the sale of personalty, the bidder is estopped from setting up as a defense the invalidity of the sale when, after bidding off the property, the bidder was given possession of the property, and removed the property, so that the sheriff could not find the property to resell the property. McDonald v. Ellis, 17 Ga. App. 471, 87 S.E. 711 (1916) (decided under former Civil Code 1910, § 5736).

When year's support was set apart to a widow and minor children, and the widow, in order to obtain a loan upon the property, represented to the lender that she needed the loan as a support for herself and the children, and the loan was made upon the faith of such representation, and the lender was not negligent in failing to ascertain the truth, the lender is protected, and may enforce a security deed executed as a part of the transaction, whether or not the money was used, or was intended to be used, for a different purpose. Reynolds v. Baxter, 177 Ga. 849, 171 S.E. 706 (1933) (decided under former Code 1933, § 38-114).

- While the right of dower is highly favored and carefully guarded by the courts, yet if the widow should practice fraud upon innocent purchasers, and induce them to become purchasers of land subject to her dower, under the impression that they were getting property free from such encumbrance, she would be estopped from setting up her right to dower in such land. Knox v. Higginbotham, 75 Ga. 699 (1885). (The right of dower is abolished. See O.C.G.A. § 53-1-1. See Code 1863, § 3676).

- Admission by a wife that she is purchasing goods on her own account amounts to an estoppel; and, in a subsequent suit against her for the purchase price of the goods, it will preclude her from setting up the defense that it was the husband's debt. Wolff & Happ v. Hawes, 105 Ga. 153, 31 S.E. 425 (1898) (decided under former Civil Code 1895, § 5150).

- Although a constable, while occupying the constable's office and performing the duties thereof, entered as a candidate for the office in a void election and was defeated, this conduct would not estop the constable from attacking the validity of the election and claiming title to the office for the unexpired portion of the term for which the constable was elected and qualified at the regular election held two years previously. Motes v. Davis, 188 Ga. 682, 4 S.E.2d 597 (1939) (decided under former Code 1933, § 38-114).

Erroneous legal advice given by a person was not an "admission" within the meaning of the former statute, although such advice may have been acted upon to another's injury and to the benefit of the party giving it. This was especially true when it did not appear that the advice was given in bad faith or with intent to deceive or defraud. Lee v. Hill, 28 Ga. App. 312, 111 S.E. 211 (1922) (decided under former Civil Code 1910, § 5736).

- Trial court did not err in awarding summary judgment to the State Medical Education Board, making a student liable for both the amount of the scholarship received and attorney's fees as: (1) estoppels were unfavored under Georgia law; (2) the student came forward with no more than hearsay to support a claim that oral misrepresentations of fact were made regarding the scholarship; (3) the contract was not rescinded by either party; (4) no mutual mistake of fact was found; and (5) any impossibility in performing the contract was personal to the student. Calabro v. State Med. Educ. Bd., 283 Ga. App. 113, 640 S.E.2d 581 (2006) (decided under former O.C.G.A. § 24-4-24).

Court of appeals correctly reversed a trial court's grant of summary judgment to a driver and a corporation, which was based on a second driver's lack of diligence in serving the second driver's personal injury complaint in the driver's voluntarily dismissed original action because that driver was not equitably estopped from proceeding with the second driver's renewal action; the first driver and corporation did not allege an affirmative act of deception, and to the extent that the second driver had a duty to speak to them, it was to inform them of the lawsuit, but that duty was defined by the Georgia Code, which included the renewal statute, O.C.G.A. § 9-2-61. Robinson v. Boyd, 288 Ga. 53, 701 S.E.2d 165 (2010) (decided under former O.C.G.A. § 24-4-24).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29 Am. Jur. 2d, Evidence, §§ 201, 219 et seq.

Equitable Adoption, 18 POF2d 531.

9A Am. Jur. Pleading and Practice Forms, Estoppel and Waiver, § 4.

- 31A C.J.S., Evidence, §§ 183, 227.

- Loss of right to contest assessment in proceeding for street or sewer improvement by waiver, estoppel, or the like, 9 A.L.R. 634.

Loss of right to contest assessment in drainage proceeding by waiver, estoppel, or the like, 9 A.L.R. 842.

Effect of filing affidavit of forgery against ancient deed, 18 A.L.R. 908.

Rights and remedies of tenant who remains in possession of all or part of the premises against landlord for interfering with his possession or enjoyment, 20 A.L.R. 1369; 28 A.L.R. 1333; 64 A.L.R. 900.

Dispensing with proof of proper custody as condition of admission of ancient document, 29 A.L.R. 630.

Estoppel of mortgagor or seller to deny existence of property mortgaged or sold, 40 A.L.R. 382.

Decree of divorce or pleadings or evidence in divorce suit as estoppel to deny marriage between the parties thereto, 45 A.L.R. 925.

Waiver of or estoppel to assert lien by filing claim with or receiving dividend from assignee for creditors, 55 A.L.R. 993.

Nature of conveyance or covenants which will create estoppel to assert after-acquired title or interest in real property, 58 A.L.R. 345; 144 A.L.R. 554.

Effect of intrusting another with stock certificate endorsed or assigned in blank to estop owner as against a bona fide purchaser or pledgee for value, 73 A.L.R. 1405.

Estoppel by conduct during testator's life to dissent from or attack validity of will, 74 A.L.R. 659.

Estoppel of one riparian owner to complain of diversion of water by another riparian owner, 74 A.L.R. 1129.

Provision in sale contract to the effect that only conditions incorporated therein shall be binding, 75 A.L.R. 1032; 127 A.L.R. 132; 133 A.L.R. 1360.

Estoppel by apparent acquiescence in or silence concerning improvements of real property to assert antagonistic title or interest, 76 A.L.R. 304.

Estoppel of wife who permits record title to realty to remain in husband's name to assert her own title as against one extending credit to husband, 76 A.L.R. 1501.

Waiver of, or estoppel to assert, debtor's exemption, by laches or delay, 82 A.L.R. 648.

Right of a purchaser assuming a mortgage debt, with the authorization of the mortgagor, to set up usury in mortgage as a defense or rely upon it as a ground of relief in equity, 82 A.L.R. 1153.

Estoppel by recitals in municipal bonds as to lawfulness of issue, 86 A.L.R. 1057; 158 A.L.R. 938.

Estoppel of municipal corporation or other political subdivision by recitals in its bonds to dispute their validity as affected by the character of the owner of bonds as an original holder or a transferee, 86 A.L.R. 1129.

Distinction between judgment as bar to cause of action and as estoppel as to particular fact, 88 A.L.R. 574.

Estoppel of municipality to deny that it gave its consent to street franchise, 89 A.L.R. 619.

Rule of estoppel of tenant to deny landlord's title as applicable where landlord affirmatively asserts a title or interest beyond that essential to his right to create the tenancy, 89 A.L.R. 1295.

Statement or estimate by mortgagee as to amount due or to become due, made to prospective purchaser or subsequent mortgagee of property, as basis of estoppel, 90 A.L.R. 1432.

Voluntary payment or other relief by insurance carrier under Workmen's Compensation Act as estoppel to deny issuance of policy or that case is within coverage, 91 A.L.R. 1530.

Estoppel by silence or delay, after knowledge, in disclosing forgery of guaranty, 96 A.L.R. 379.

Personal liability of officer or his bond as affected by his failure to file return of his proceedings after seizing property under writ or process, 98 A.L.R. 692.

Entrusting possession of securities to bank officer or employee who uses them to make a fraudulent showing of bank assets as estoppel of owner to reclaim them as against bank receivers, 100 A.L.R. 679.

Estoppel to assert usury against innocent purchaser of usurious instrument, 110 A.L.R. 451.

Acts done by executor or administrator in a representative capacity as estoppel in individual capacity, or vice versa, 110 A.L.R. 599.

Advantage which the original trier of facts enjoyed over reviewing court from opportunity of seeing and hearing witnesses, 111 A.L.R. 742.

Reacquisition by mortgagor, or his grantee, of the title through foreclosure of first mortgage as affecting rights under a second mortgage to which the property was subject before the foreclosure, 111 A.L.R. 1285.

Doctrine of election or estoppel as applicable as against beneficiary of will where provision for other beneficiary is invalid, not for reasons personal to former, but because of statute or public policy, 112 A.L.R. 377.

Testimony or sworn statements in prior action or proceeding as basis of estoppel in favor of one not a party or privy thereto, 113 A.L.R. 925.

Abandonment of appeal or right of appeal by commencement, or prosecution to judgment, of another action, 115 A.L.R. 121.

Promissory estoppel, 115 A.L.R. 152; 48 A.L.R.2d 1069.

Tax exemption as affected by failure to claim or delay in claiming it for past years, 115 A.L.R. 1484.

Judgment or order in connection with appointment of executor or administrator as res judicata, as law of the case, or as evidence, on questions other than the validity of the appointment, 119 A.L.R. 594.

Conclusiveness of charter as regards character, kind, or purposes of corporation, 119 A.L.R. 1012.

Judgment in action for personal injury or death as res judicata as to negligence or contributory negligence in subsequent action for death in same accident of person whose estate was represented by defendant in first action, 119 A.L.R. 1469.

Pleading waiver, estoppel, and res judicata, 120 A.L.R. 8.

Distinction between effect of fact to create presumption of further fact and its effect as prima facie evidence of the further fact in determining burden of proof and weight of evidence, 121 A.L.R. 1078.

Estoppel as ground for holding defendant liable for negligence in conduct of business which appears to be his but which in fact belongs to another, 122 A.L.R. 256.

Creditor's statement or assurance to debtor, not supported by a consideration, that payment need not be made at time due, as binding upon creditor by way of estoppel, 124 A.L.R. 1248.

Doctrine of estoppel as applicable against one's right to hold a public office or his status as a public officer, 125 A.L.R. 294.

Mistake as to date of lapse of policy in insurer's statement of reason for denial of claim under policy as affecting its right to insist upon lapse as defense, 125 A.L.R. 1270.

Liability of one exercising the rights of an owner of realty for injuries due to its condition, as affected by want of legal title, 130 A.L.R. 1525.

Waiver or estoppel predicated upon surviving partner's surrender of possession of partnership property to personal representative of deceased partner, 137 A.L.R. 1024.

Estoppel to assert invalidity of decree of divorce for lack of domicil at divorce forum or failure to obtain jurisdiction of person of defendant, 140 A.L.R. 914; 153 A.L.R. 941; 175 A.L.R. 538.

Estoppel of grantee or mortgagee as to amount of prior mortgage recited, 141 A.L.R. 1184.

Ultimate fact, as distinguished from evidentiary fact, as regards effect of judgment as estoppel, 142 A.L.R. 1243; 152 A.L.R. 1193.

Falsity of representation or warranty as defense to action upon policy of insurance on life of infant, 143 A.L.R. 331.

What amounts to waiver, estoppel, or loss of bank's right to set off depositor's indebtedness against deposit or to apply deposit upon indebtedness, 143 A.L.R. 453.

Estoppel by silence or other conduct (other than failure to file) to assert against estate claim antedating decedent's death, 146 A.L.R. 1179.

Estoppel of mechanic's lien claimant as predicable upon his representations to owner as to payment made to claimant by contractor or subcontractor, 155 A.L.R. 350.

Estoppel of owner of tangible personal property who knowingly or voluntarily permits another to have possession of certificates or other evidences of title, endorsed in blank or otherwise showing ownership in possessor, to deny latter's authority to sell, mortgage, pledge, or otherwise deal with, the property, 155 A.L.R. 690.

Provision of life insurance policy limiting insurer's liability under specified conditions to return of premiums, as subject to waiver or estoppel by reason of agent's knowledge of breach of condition respecting insured's health, 163 A.L.R. 691.

Authority of agent who delivers commercial paper or other obligation to third person for collection, to receive payment of proceeds from the latter, so as to preclude principal's right to enforce payment of proceeds, 163 A.L.R. 1209.

Estoppel of intervenor to assert claim against original complainant, 166 A.L.R. 911.

Construction and application of statute respecting estoppel of insurer where insured was examined by medical examiner, 172 A.L.R. 143.

Right of tenant, as against landlord, to acquire or assert title based on foreclosure of lien or sale for tax or special assessment, 172 A.L.R. 1181.

Acceptance by building or construction contractor of payments under his contract as a waiver of right of action upon implied warrant as to conditions affecting cost, 173 A.L.R. 308.

Applicability of doctrine of estoppel against government and its governmental agencies, 1 A.L.R.2d 338.

Joining in instrument as ratification of or estoppel as to prior ineffective instrument affecting real property, 7 A.L.R.2d 294.

Estoppel of mortgagee to contest the mortgagor's title, 11 A.L.R.2d 1397.

Deafness of juror as ground for impeaching verdict, or securing new trial or reversal on appeal, 15 A.L.R.2d 534.

Insurer's demand for additional or corrected proof of loss as waiver or estoppel as to right to assert contractual limitation provision, or as suspending running thereof, 15 A.L.R.2d 955.

Conviction or acquittal as evidence of the facts on which it was based in civil action, 18 A.L.R.2d 1287.

Estoppel of one selling or conveying property to dissolved or defunct corporation to deny its existence, 20 A.L.R.2d 1084.

Renunciation of beneficial interest under inter vivos trust as condition of right to contest its validity, 21 A.L.R.2d 1457.

Estoppel of United States, state, or political subdivision by deed or other instrument, 23 A.L.R.2d 1419.

Estoppel to rely on statute of limitations, 24 A.L.R.2d 1413.

Estoppel to contest will or attack its validity, 28 A.L.R.2d 116.

Insurer's admission of liability, offers of settlement, negotiations, and the like, as waiver of, or estoppel to assert, contractual limitation provision, 29 A.L.R.2d 636.

Insurer's admission of liability, offers of settlement, and negotiations for adjustment or settlement, as waiver of proof of property loss, 49 A.L.R.2d 87.

Denial of liability as waiver of proofs of loss required by insurance policy, 49 A.L.R.2d 161.

Presumption of consideration from revenue stamps on deed, 51 A.L.R.2d 1004.

Estoppel by lease: effect of lessor's after-acquired title or interest during lease term, 51 A.L.R.2d 1238.

Right to attack validity of statute, ordinance, or regulation relating to occupational or professional license as affected by applying for, or securing license, 65 A.L.R.2d 660.

Estoppel of oil and gas lessee to deny lessor's title, 87 A.L.R.2d 602.

Estoppel of one doing business with personal representative purporting to carry on decedent's business, to assert representative's personal liability, 3 A.L.R.3d 757.

Modern status of doctrine of res judicata in criminal cases, 9 A.L.R.3d 203.

Purchaser of real property as precluded from attacking validity of zoning regulations existing at the time of the purchase and affecting the purchased property, 17 A.L.R.3d 743.

Judgment in action against seller or supplier of product as res judicata in action against manufacturer for injury from defective product, or vice versa, 34 A.L.R.3d 518.

Liability of insurance agent, for exposure of insurer to liability, because of failure to cancel or reduce risk, 35 A.L.R.3d 792.

Liability of insurance agent, for exposure of insurer to liability, because of failure to fully disclose or assess risk or to report issuance of policy, 35 A.L.R.3d 821.

Liability of insurance agent, for exposure of insurer to liability, because of issuance of policy beyond authority or contrary to instructions, 35 A.L.R.3d 907.

Judgment against parents in action for loss of minor's services as precluding minor's action for personal injuries, 41 A.L.R.3d 536.

Fiduciary or confidential relationship as affecting estoppel to plead statute of limitations, 45 A.L.R.3d 630.

Delay caused by other litigation as estopping reliance on statute of limitations, 45 A.L.R.3d 703.

Setting aside arbitration award on ground of interest or bias of arbitrators, 56 A.L.R.3d 697.

Promissory estoppel as basis for avoidance of statute of frauds, 56 A.L.R.3d 1037.

Automobile or motorcycle as necessary for infant, 56 A.L.R.3d 1335.

Modern status of rules regarding materiality and effect of false statement by insurance applicant as to previous insurance cancellations or rejections, 66 A.L.R.3d 749.

Modern status of law as to equitable adoption or adoption by estoppel, 97 A.L.R.3d 347.

Estoppel of state or local government in tax matters, 21 A.L.R.4th 573.

Deafness of juror as ground for impeaching verdict, or securing new trial or reversal on appeal, 38 A.L.R.4th 1170.

Estoppel to contest will or attack its validity by acceptance of benefits thereunder, 78 A.L.R.4th 90.

Laches or delay in bringing suit as affecting right to enforce restrictive building covenant, 25 A.L.R.5th 233.

Setting aside arbitration award on ground of interest or bias of arbitrators - commercial, business, or real estate transactions, 67 A.L.R.5th 179.