¶1concurring specially. The defendant’s answer alleged that the automobile sued for was sold to F. & M. Auto Sales, of Statesboro, Georgia, on December 29>, 1952, that the defendant was a member of the firm, and that the title to the automobile was in F. & M. Auto Sales. The nonsuit was properly granted for the reason that the action was brought against the defendant individually, and there was no evidence that the defendant was in possession of the property or individually converted it to his own use.
¶2I do not concur in the majority ruling to the effect that the purchaser from Martin obtained title to the automobile as a matter of law, or that the plaintiff was estopped to deny such purchaser’s title. When the check used by Martin left the plaintiff’s possession all spaces were blank except the plaintiff’s signature as maker. The auctioneer’s name was put in the check as payee. The evidence does not show when the payee’s name was filled in, or whether-the auctioneer knew that it was delivered to Martin with the space for the payee left blank. Whether Martin filled in the blanks before the auctioneer knew the spaces were blank, the fact that the auctioneer’s name was put in the check as the payee is one of the facts to be considered in determining whether Martin was purporting to act as agent for the plaintiff. Of course,-1 realize that Martin did not have authority to act, but the question is whether, he. Was purporting so to 'act. If he was, his principal could .ratify his acts. Since the check was made out to the auctioneer and Martin was not even required to indorse it, I think that the money purchasing the automobile belonged to the plaintiff. The auctioneer, acting for the owner, evidently thought so because it procured a bill of sale from the owner to the plaintiff. The owner would not ordinarily execute two bills of sale to two different people to the same automobile. I do not agree that the evidence shows that the plaintiff repudiated the act of Martin. It shows only that he so intended. Even if he did repudiate it at first, he could still *779ratify it unless Collins relied on his prior renunciation. Woodward v. Harlow, 28 Vt. 338; Neely v. Jones, 16 W. Va. 625 (37 Am. R. 794); Warder &c. Co. v. Cuthbert, 99 Iowa 681 (68 N. W. 917); Sloan v. Johnson, 20 Pa. Super. 643; Andrews v. Aetna Life Ins. Co., 92 N. Y. 596; Mechem, The Law of Agency, (2d ed.) Vol. 1, § 489, p. 359; 2 C. J., Agency, § 79, p. 468. I think that the plaintiff ratified the acts of Martin if Martin was purporting to act for him. If such ratification took place, the title to the car passed to the plaintiff, and he would be entitled to recover it from whoever received it from Martin. The acts of Martin were equivalent to a forgery of the check. If a forgery can be ratified, certainly the purchase here could be. Southern Federal &c. Assn. v. Firemen’s &c. Assn., 72 Ga. App. 663, 666 (34 S. E. 2d 674); Groover v. Savannah Bank & Trust Co., 60 Ga. App. 357 (3 S. E. 2d 745). I do not agree that Martin got a legal title and the plaintiff an equitable title, and that the rights of an innocent third person intervened to prevent the plaintiff’s ratification. This might have been the result if Maiv tin had secretly used the plaintiff’s money and had bought the automobile as an individual. Under the facts the legal title passed immediately to the plaintiff, subject to his right to repudiate the transaction if Martin was purporting to act as agent. The purchaser from Martin was not misled by anything the plaintiff did, and the plaintiff, would not be estopped to claim the property. The sole question is: who had the legal title to the automobile? The purchaser from Martin relied only on Martin’s possession, so far as the evidence shows; and the mere negligence of an owner in putting personal property in the possession of another so that he is given the opportunity to dispose of it is not sufficient to estop the owner. So far as the purchaser from Martin is concerned, that is all the plaintiff was guilty of. Singer Sewing Mach. Co. v. Wardlaw, 29 Ga. App. 626 (1) (116 S; E. 207); Consolidated Co. v. Citizens Bank, 32 Ga. App. 113, 114 (3) (122 S. E. 732); Guthrie v. Hendley, 56 Ga. App. 438 (193 S. E. 80); Burpee v. Athens Production Credit Assn., 65 Ga. App. 102, 107 (15 S. E. 2d 526); Citizens Bank v. Mullis, 161 Ga. 371 (2) (131 S. E. 44). The purchaser from Martin is not shown to have relied on the belief that Martin bought the automobile individually and not while purporting to act.as the agent of the *780plaintiff. There is no question of the relative rights of two innocent parties. The plaintiff was not innocent for the reason that he signed a blank check and delivered it to Martin. The evidence does not show that the purchaser from Martin was an innocent purchaser. In fact, it would be impossible to prove that he was. lie, or they, either bought the property without making an inquiry as to Martin’s title or he, or they, made inquiry; and if inquiry had been made, it would have revealed that Martin was not the owner of the automobile. The real question is, which of two negligent parties should prevail? The law happens to be on the side of the plaintiff. The ruling in Graham v. Williams, 114 Ga. 716, on the question of the intervention of the rights of third parties, is obiter. First, because there was no evidence of intervening rights, and second, because the judgment was based on another ruling which completely justified the grant of a nonsuit. The ruling in Dalton Buggy Co. v. Wood, 7 Ga. App. 477, does not support the majority ruling in this case because in that case, even considering the discussion of intervening rights as not being obiter (and there was no evidence of a legal ratification), the principle was applicable because the liens attached by operation of law, and any attempt at ratification would have been a self-serving act by which the operation of law would have been circumvented. Evans v. Coleman, 101 Ga. 152 (28 S. E. 645), also involved a lien created by law. I agree that intervening rights of innocent third persons may sometimes preclude ratification, but such a result, in my opinion, only obtains automatically by operation of law. There is another principle which will prevent ratification from interfering with the intervening rights of third persons, and that is estoppel against the principal. Operation of law did not preclude ratification in this case because Martin did not have title to the property and therefore could not transfer it. There is no evidence showing that the plaintiff was estopped. There is no evidence that Martin sold the automobile before the plaintiff ratified its purchase, even if such would make any difference, which I do not concede. Even if Martin sold the automobile before his purchase was ratified, there is no evidence that the purchaser knew that Martin had been a salesman for the plaintiff, so that he might have relied on Martin’s apparent authority to sell under the principles of Code § 96-207. There is no *781evidence that the auctioneer or Martin’s transferee had reason to believe that Martin got title to the automobile by buying it as an individual.
¶3A written bill of sale passes title to personalty without an actual delivery of the personalty (Ellis v. Rudeseal, 56 Ga. App. 210, 192 S. E. 554; Nolley v. Elliott, 50 Ga. App. 382, 178 S. E. 309; Burney v. Ball, 24 Ga. 505 (3)); and the plaintiff made out a prima facie case by proving his ratification by accepting the bill of sale. If the defendant claimed an intervening equity or right or title by estoppel, it was incumbent on him to plead and prove it. Estoppel, in a case like this, is an affirmative defense and must be pleaded by the defendant. Carter v. Carter, 207 Ga. 460 (62 S. E. 2d 171); Bennett v. Davis, 201 Ga. 58, 63 ( 39 S. E. 2d 3); Hughes v. Cobb, 195 Ga. 213, 231 (23 S. E. 2d 701); Hartsfield Loan &c. Co. v. Garner, 184 Ga. 283, 284 (2) (191 S. E. 119); Seaboard Air-Line Ry. Co. v. Holliday, 165 Ga. 200, 207 (140 S. E. 507); Hightower v. Blakely Lumber Co., 163 Ga. 776 (137 S. E. 22); Jackson v. Lipham, 158 Ga. 557 (3) (123 S. E. 887); DeVore v. Baxter, 155 Ga. 109 (3) (116 S. E. 610); Irvine v. Wiley, 145 Ga. 867, 868 (3) (90 S. E. 69); Harris v. Neil, 144 Ga. 519 (2) (87 S. E. 661); Parks v. Hailey, 142 Ga. 391 (10) (83 S. E. 100); Calloway v. Irvin, 123 Ga. 344, 351 (51 S. E. 477); Tuells v. Torras, 113 Ga. 691, 698 (39 S. E. 455); Trice v. Rose, 80 Ga. 408 (7 S. E. 109); Jones v. Courts, 64 Ga. App. 239, 252 (12 S. E. 2d 446); Loftis Plumbing &c. Co. v. American Surety Co. of N. Y., 74 Ga. App. 590 (2) (40 S. E. 2d 667).
¶4Any presumption of title that may have arisen in favor of the defendant by reason of his mere possession—assuming that possession had been proved—vanished when the plaintiff proved his title by showing a ratification of Martin’s acts by the acceptance of a bill of sale to the automobile. If Martin did impliedly warrant title in the automobile by reason of his purported sale to the defendant, such warranty would not have the effect of vesting in the defendant title which he did not otherwise have.