1. The charge of the court, to which the defendant excepts in the first ground of the amendment to his motion for new trial, is not erroneous for any of the reasons assigned by the movant. If at the time the defendant purchased this land, when it was sold by the administrator of William Jackson as the property of the latter, he knew that Sam T. Jackson owned an undivided half interest therein, the mere fact that Sam T. Jackson stood by at such sale and permitted the defendant to purchase this property without disclosing his title would not estop said Jackson from asserting whatever title he had thereto. Where the estoppel relates to real estate, the party claiming to have been influenced by the other’s acts or declarations must be ignorant of the true title. Civil Code (1910), § 5737. The estoppel provided for in section 4419 of the Code is applicable only where the purchaser is ignorant of the true state of the title. This instruction did not have the effect of excluding from the consideration of the jury the defendant’s defense, that he bought and paid for whatever interest Sam T. Jackson had in this land, and that the administrator’s sale and deed were the means of putting title to this land in him, under the agreement of sale between him and Sam T. Jackson.
2. The instruction touching prescription, to which the defendant excepts in the second ground of the amendment to his motion for new trial, was not erroneous for the reasons urged by the - defendant. By his answer the defendant specifically set up title by prescription under his deed to this land from the administrator of William Jackson; and for this reason the court did not misstate the defendant’s contention. Said instruction did not tend to mislead the jury, was not calculated to depreciate the defendant’s defense that he claimed under a prior purchase from the grantor of the plaintiff, and was not an expression of opinion by the court upon the evidence.
3. The charge of the court upon estoppel, set out in the third ground of the amendment to the motion for new trial, is not an incorrect statement of the law, so far as the defendant is concerned. Conceding, but not deciding, that the evidence makes a case which authorized an instruction upon the subject of estoppel, the mere presence of the true owner at the administrator’s sale, and his failure to disclose his claim and title to the land in dispute, would not estop him or his grantee from asserting title to the land, if the purchaser at such sale knew of the true state of the title at the time. Civil Code (1910), § 5737; Tune v. Beeland, 131 Ga. 528 (62 S. E. 976); Stonecipher v. Kear, 131 Ga. 688 (63 S. E. 215, 127 Am. St. R. 248); Oats v. Jones, 136 Ga. 704 (71 S. E. 1097). Nor would the true owner be estopped by .the fact that his land was sold by the administrator as the property of an intestate, of whom he was an heir, unless it was shown that he participated in the proceeds of such sale either as his heir or creditor and with knowledge of the facts. Lamar v. Pearre, 90 Ga. 377 (17 S. E. 92); Bourquin v. Bourquin, 110 Ga. 440 (35 S. E. 710); Hicks v. Webb, 127 Ga. 170 (56 S. E. 307); Hawks v. Smith, 141 Ga. 422 (5) (81 S. E. 200). Upon the party pleading an estoppel rests the burden of proving every essential fact necessary to constitute the estoppel. Callaway v. Irvin, 123 *558Ga. 344, 351 (51 S. E. 477); Parks v. Hailey, 142 Ga. 391 (10) (83 S. E. 100); Harris v. Neil, 144 Ga. 519 (2) (87 S. E. 601).
4. The defendant excepts to the charge set out in the fourth ground of the amendment to his motion for new trial, not on the ground that it is ' incorrect as an abstract principle of law, but upon the grounds, (1) that there was no evidence that Sam T. Jackson was ever in possession, when any declaration was made by him; (2) that it was misleading and harmful, and tended to convey the idea that the declaration made by said Jackson was made while he was in possession; (3) that all the evidence shows that the defendant rented the premises and collected the rent thereof since the date of the administrator’s deed; (4) that there was no evidence to authorize said charge, so far as the same applied to said Jackson; and (5) that said charge should have been given only as to the defendant. These objections are without merit. The trial judge, under the evidence, properly admitted declarations of both said Jackson and the defendant, asserting title to this land to be in each declarant, alleged to have been made by them while in possession of the premises; and the question of possession of the premises by the declarant being in dispute, the trial jirdge properly submitted to the jury the questions whether such declarations were in fact made, and, if made, whether made while the declarant was in possession, with an instruction to the jury to consider such declarations only in the event they found that the declarants were in possession when the same were made. When the facts upon which the admissibility of evidence depends are disputed, it is proper for the court to admit such evidence, and to instruct the jury that they should disregard such testimony, if they find such facts did not exist. Holloway v. State, 16 Ga. App. 143 (2) (84 S. E. 590).
5. The defendant excepts to the charge of the court on the subject of mesne profits, which is set out in full in the fifth ground of the amended motion. The errors assigned are, (1) that “a tenant in common cannot recover rents from his cotenant unless by an express contract to pay rent,” and (2) that there was no evidence to authorize this instruction. The jury were authorized to find from the evidence that the defendant appropriated all of the premises in dispute to his exclusive use, in which event he would be liable to his cotenant for rent. Civil Code (1910), § 3724. Furthermore, the jury found against the theory that the plaintiff and the defendant were cotenants; and in view of this finding, this instruction, even if erroneous, was harmless to the defendant.
6. In the sixth and seventh grounds of the amendment to his motion for new trial the defendant excepts to the admission in evidence of a certain declaration made by Sam T. Jackson to J. H. Jackson, in which he stated that the north part of the tract known as the bottom place was his and the south part was the defendant’s, and of a declaration made by Sam T. Jackson to J. W. Spradlin, in which he said that 50 acres, “being the property in dispute,” belonged to him individually. The witness, J. H. Jackson, did not testify that the declarant was in possession of the premises in dispute at the time he made the above declaration, but that Sam T. Jackson stated at the time that he was in possession of the premises. The witness Spradlin stated that Jackson said he was in possession. The objection to the admission of this testimony was that *559it did not appear that Sam T. Jackson was in possession at the time he made these declarations. The court overruled this objection and admitted this evidence. While the witness who testified to these declarations did not swear that Sam T. Jackson was in possession when he made them, there was other evidence from which the jury might infer that ho was in possession when he made them; and while this fact was in dispute between the parties, the court properly admitted the declarations, with an instruction to the jury to disregard them if they found that the declarants were not in possession when they made them. This is so for the reason assigned in the fourth headnote above.
No. 4285. July 18, 1924.7. In the eighth ground of the amendment to his motion for new trial the defendant complains that one of the jurors who tried this case was disqualified and incapacitated to do so, because of bias and prejudice entertained by said juror towards him. Under the conflicting evidence on this subject, the judge, who was trior of the fact, did not abuse his discretion in overruling this ground of the motion for new trial.
8. There is evidence to support the verdict.
Judgment affirmed.
All the Justices concur. M. U. Mooiy, Smith & Taylor, and D. B. Whitaker, for plaintiff in error. S. Holderness, contra.