(After stating the foregoing facts.) After a careful examination of ..the entire record including the evidence introduced, pro and con, we are of the opinion that the evidence was so conflicting upon the material issues involved that the case should have been submitted to the jury under proper instructions from the court. In directing a verdict for the defendant the court prefaced his ruling with these remarks: “ I do not think these plaintiffs are entitled to recover. In my opinion the case is controlled by the authority read by defendant’s counsel. Further, it appears from the evidence that J. E. DeVore in 1901 made application for a pension and drew a pension from the State of Georgia as an indigent pensioner for thirteen years. If he owned the properties involved here, he practiced a fraud upon the State. It is charitable to his memory to say that he did not own them. The courts have held that when a fraud has been perpetrated upon the State, a court of equity will not lend its aid to assist one guilty of such conduct. The deceased would have been estopped by such conduct, and those claiming to hold under him arg likewise es-topped from claiming property that he then disclaimed under his solemn oath.” It will be observed that the trial judge placed his decision in directing a verdict solely upon the doctrine of estoppel; but it will also be observed from an examination of the record that estoppel was not pleaded by the defendant, and there is authority for the proposition that where estoppel is not pleaded' it can not be taken advantage of by the defendant. Trice v. Rose, 80 Ga. 408 (7 S. E. 109); Tuells v. Torras, 113 Ga. 691, 698 (39 S. E. 455); Askew v. Amos, 147 Ga. 613 (95 S. E. 5); Irvine v. Wiley, 145 Ga. 867 (3), 868 (90 S. E. 69); Fidelity & Deposit Co. v. Nisbet, 119 Ga. 316 (7) (46 S. E. 444); Lynch v. Poole, 138 Ga. 303, 304 (75 S. E. 158). It appears from the record, not only that no plea of estoppel was filed, but that it was not urged by the defendants on the trial of the case; and the plaintiffs had no opportunity to meet such claim, for the reason *114as contended by them that their first notice that estoppel was relied on as a defense was when the court announced, preliminary to directing the verdict for the defendant, that the plaintiffs were estopped from recovering in the case. But, assuming for the purposes of the argument that the defendant could take advantage of estoppel if it applied by reason of the ruling of the court beiow, we- are of the opinion that the facts of this case do not make such a case of estoppel as would prevent the plaintiffs from bringing their suit and sustaining it by proof. Even if J. E. DeVore practiced a fraud upon the State by representing that he had no property in order to secure a pension, we do not see how this would estop the plaintiffs from asserting whatever right or title they might have in and to the property in question, both plaintiffs, and defendant claiming under a common grantor, J. E. DeVore. 10 E. C. L. 683, § 12.
As stated above, on the material issues in the case the evidence is conflicting. It is insisted on the part of the plaintiffs, that J. E. DeVore made a deed to Mair to secure a debt of $300, and took a bond for title from Mair to reconvey on the payment of the debt; that J. E. DeVore, and certain of his sons and his daughter, Annie, paid off this debt to Mair; that the deed executed by J. E. DeVore to J. E. DeVore in 1913 was without consideration'; that at the time of the execution of the deed J. E. DeVore was an imbecile, and was insane from the effects of a stroke of paratysis, and was incapable, at the time of executing the deed, of understanding the nature of a contract; and that consequently the deed executed by him to his son was null and void. There is evidence to support these contentions. This evidence is controverted by the defendant’s witnesses, who also testify that J. E. DeVore and those who hold under him were really holding under J. E. DeVore. The evidence being conflicting on the material issues of the case, it was error for the court to direct a verdict for the defendant.
The first headnote requires no elaboration.
Judgment reversed.
All the Justices concur, Bussell, G. J., specially.