Lackey v. Pool

25 S.E. 174, 97 Ga. 718

• Court: Supreme Court of Georgia
• Decided: February 7, 1896
• Status: Published

Opinion

Lumpkin, Justice.

A suit in the nature of an action of trover was brought by Lackey against Pool, for the recovery of certain personalty which the declaration alleged had been sold under a void distress warrant and purchased by the defendant. It is unnecessary to determine whether the distress warrant was, or was not, a valid process. Por the purposes of this case, it may be treated as absolutely void; for, granting it was so, the plaintiff, under the evidence, could in no event recover. It appeared that after the distress warrant had been levied upon the property in question, the defendant, by his attorney, consented to an order of court directing a speedy sale under this warrant. It is true that Lackey testified that he spoke to an attorney “to fight the granting of the order of sale”; but he swears further that this attorney consented to the order of sale in his presence, and does not pretend that he made the slightest objection to this action on the part of his counsel. It also appears that the plaintiff was present at the sale and made no objection to its taking place; and, either then or previously, informed others that the purchaser at the sale would get a good title. If ever human conduct amounted to an estoppel, it seems indisputablethat rathe present case the plaintiff absolutely-forfeited any right he may have had to complain of the levy as illegal, or to deny the validity of the sale. It does not appear that he expressly assented thereto, but the course he pursued throughout the entire transaction amounted practically to the same thing. If, in cases of this character, express ratification on the part of the complaining party were the exclusive test, without regard to conduct on his part from which the law would imply a tacit assent, the doctrine of estoppel would have an exceedingly limited operation.

Judgment affirmed.