with these words in it as written in the first note. He knew all about the Tom Bullard farm or tract of land and the difference between us was as to whether said tract of land was a one-horse or a two-horse farm, I contending it to be the former, while he held it to be the latter; I finally consented to sign the note as he requested, describing said tract as a two-horse farm, but required him to insert therein the words, 'being the same land I worked in 1901.' When I signed these two rent notes, the words, 'being land on which I now reside, adjoining lands of Cinth Athon, B. E. Gooch, Mose Bussy, and others,' were not in either. I did not see or notice such words and description. This description covers my own home and my own lands which I have occupied, used, and improved for over 30 years without ever paying rent to any one. This Tom Bullard tract lies adjacent to my own land and is separated from my land by a line run off and agreed upon between M. R. Hudson and myself before these rent notes were ever given. The Tom Bullard tract belongs to John R. Hudson, deceased. My land consists of 100 acres. The land, and the only land, I rented in 1901 and 1902, was the Tom Bullard tract. I am a practical farmer and know for what lands rent; a one-horse farm rents for 100 pounds of cotton." Gorley, the overseer, testified that Bullard refused to sign the note he carried to him, "because said note, he claimed, called the land a two-horse farm, he said the Tom Bullard tract was only a one-horse farm, and for this reason struck out the words, as I have stated. Before his death M. R. Hudson showed me the line between the Hudson lands and the lands occupied by said Bullard; the Tom Bullard tract lies on the east side of this line on Little river." Defendant sought to prove by Gorley that the land discussed by defendant in conversation with witness, at the time of the controversy about the "one" or "two" horse farm was the Tom Bullard tract, and also that the land rented by Bullard in 1901 was the Tom Bullard tract, but the court would not allow the evidence, on the ground "that it would alter and vary the contract, and that the note itself was the highest and best evidence as to what land was rented." Defendant then offered to show by parol testimony that the consideration expressed in the rent note was not the true consideration thereof, and that he never intended to rent the lands described in the note, "but that the true and only consideration thereof was said Tom Bullard tract." But the court refused to admit this testimony. Defendant also sought to explain the words, "being the land I worked in 1901," insisting that they were ambiguous, but the court would not permit it. At the conclusion of the evidence, counsel for plaintiffs moved the court to direct a verdict in their favor, while defendant's counsel asked that a nonsuit be awarded. The court directed a verdict in favor of the plaintiffs, and the defendant

excepted, assigning error upon the court's refusal to grant the nonsuit, and upon the refusal to admit the testimony above referred to.

1. The defendant sought to arrest the proceedings in this case against himself and to prevent the removal of himself and his goods from the land in controversy by declaring on oath, under the provisions of section 4815 of the Civil Code of 1895, that he held the land in his own right, and as his own, and that he did not hold it "under any contract of lease, rent, or otherwise" from the plaintiffs, and that he was not "the [plaintiffs'] tenant as alleged, either at will or by sufferance," that he had "never rented the land and premises described by the [plaintiffs] in [their] affidavit and warrant, either from the said [plaintiffs] or from any one else." Of course, if there was evidence to support this contention of the defendant, the court erred in directing a verdict for the plaintiff; and we have to consider whether or not, under all of the testimony in the case, there is to be found sufficient evidence to have authorized a finding contrary to the verdict directed. The ruling of the court was evidently based upon the theory that the note introduced in evidence, by its plain and unambiguous terms, established the fact that, for the year 1902, the defendant had attorned to the plaintiffs and recognized the relation of landlord and tenant between them as to the land in controversy. And inasmuch as the note referred to was given for rent for the year 1902, and, by its terms descriptive of the premises rented, clearly covered the land in controversy, and no other, so long as the note was unimpeached and unimpaired in its probative vigor and force, it was conclusive of the question at issue against the defendant, and in that state showed clearly that the defendant had attorned to the plaintiff and acknowledged him to be his landlord. That being true, the defendant was estopped to question the title of his landlord, and this estoppel was still operative, notwithstanding the expiration of the period of time for which this note shows he had contracted to pay rent. "If a tenant in possession desires to litigate with his landlord the title to the premises, he must first pay the rent and surrender possession. By entering under the landlord he admits his title, and the law will not permit him to assume an inconsistent position, either by attorning to any one else as his landlord, or by claiming himself title to the premises. It is wholly immaterial that the landlord may, in fact, have not even color of title to the property. It is enough that he claimed it, and that the tenant by his contract of tenancy recognized the claim. As against him, the claim is valid, though wholly unfounded. See Grizzard v. Roberts, 110 Ga. 41, 35 S. E. 291, where the previous decisions of this court are collated. See also 18 A. & E. Enc. L. (2d Ed.) 411-414; 2 McAdam, Land & T. (3d Ed.) 1350, and cases

think not. The witness had testified as if having absolute knowledge of the nonexistence in the writing of certain words. His additional statement that he did not see such words is not contradictory of the positive statement. Whether or not it was even a qualification of the positive statement is a question for determination by the jury. Certainly, taking the entire statement together, it could not be said that there was not at least negative testimony of the absence from the writing of the vital and important description in question. And what weight should be given to that testimony is a question entirely for the jury. To hold that the court was correct in directing the verdict would make it necessary for us to rule that the testimony under discussion had no weight whatever; and this we are not prepared to do.

Judgment reversed. All the Justices concur.

(125 Ga. 388)

MONTGOMERY v. KING.

EF

(Supreme Court of Georgia. May 16, 1906.) 1. APPEAL OVERRULING DEMURRER FECT ON PENDING CASE. Where a demurrer to a proceeding to foreclose a mortgage was overruled, and a bill of exceptions signed and filed, bringing the ruling to this court for review, this alone did not ipso facto operate to prevent the presiding judge from proceeding with the trial.

2. MORTGAGES-FORECLOSURE-DEFENSES.

Where proceedings were instituted to foreclose a mortgage, in the name of the original mortgagee, for the use of certain persons to whom it was alleged that the security notes had been transferred, and no effort was made to cut off any defense which the mortgagor might have, a mere denial that the title to the notes was in the usees, and an allegation that that they held such notes only as securities, did not furnish any valid defense to the foreclosure.

3. SAME-PAYMENT-PLEADING.

A general allegation in an answer that the mortgagor has paid $50 or $60, for which no credit has been given, and that she is unable to give the sum or date of each payment, without alleging to whom, or when, or where such payments were made, is demurrable. (Syllabus by the Court.)

Error from Superior Court, Floyd County; W. M. Henry, Judge.

Action by J. B. King, for use, etc., against A. A. Montgomery. Judgment for plaintiff, and defendant brings error. Affirmed.

Henry Walker, for plaintiff in error. R. T. Fouché and M. B. Eubanks, for defendant in error.

LUMPKIN, J. In the act of December 10, 1845 (Acts 1845, p. 18; 1 Ga. vi), under which this court was organized, it was provided that "all causes of a criminal or civil nature may, for alleged error in any decision, sentence, judgment, or decree of any such superior court, be carried up." On the subject of supersedeas, it was declared that "such bill of exceptions shall operate as a supersedeas to the

judgment, sentence, execution, or decree of the court below, in all cases where bond may be given or affidavit filed as hereinafter provided." In Doe v. Peeples, 1 Ga. 1, it was said: "The bill of exceptions will operate as a supersedeas only where bond and security have been given, or affidavit filed, in conformity with the act organizing the Supreme Court." See, also, Allen v. Savannah, 9 Ga. 286. In Code 1868, § 4191, it was declared that "no case shall be carried to the Supreme Court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause." As to judgments granting or refusing injunctions pendente lite, special provision is made by the statute, which says that no writ of error shall have the effect to establish or deny any injunction independently of the order of the judge, who shall grant such order and require such bond as may be necessary to preserve and protect the rights of the parties until the judgment of the Supreme Court can be had. Civ. Code 1895, 4925; Mathis v. Weaver, 94 Ga. 730, 19 S. E. 709. In Perkins v. Rowland, 69 Ga. 661, it was said: "The failure to pay costs and give bond, or to file a proper affidavit in forma pauperis in lieu thereof, on excepting to the judgment of the court below, will not deprive this court of jurisdiction. Where such bond is given or affidavit filed, it operates as a supersedeas; in the absence thereof, the opposite party is at liberty to proceed to enforce his rights in the court below by execution or otherwise, subject to the chances of a reversal. If costs are not paid, execution may be issued therefor." In Cummings v. Clegg, 82 Ga. 763, 9 S. E. 1042, it was said that "a supersedeas does not result from the pendency of a writ of error alone, but from the bond or affidavit provided for by section 4263 of the Code of 1895." After discussing the question, there occurs in the opinion this remark, which is, however, only a passing expression and not a ruling: "It should be observed further, that did a writ of error without a supersedeas divest the court below of power to proceed judicially in the cause covered by such writ of error, it would not follow that a party might not, through the sheriff, proceed with ministerial acts to realize the money due upon a fl. fa. Surely to hinder such acts, done not by order of court but at the instance of a party, a supersedeas regularly obtained would be necessary." In City Council of Augusta v. Lombard, 86 Ga. 165, 12 S. E. 212, it was held that, "where the action is against one defendant only, a writ of error will lie to a judgment overruling a general demurrer to the declaration, although the case is still pending in the court below." In Augusta Factory v. Davis, 87 Ga. 648, 13 S. E. 577, it was held that where a judge overruled a demurrer to a declaration, he might, in the

exercise of his discretion, suspend or postpone a trial of the case on the issues of fact, so as to give the defendant an opportunity to bring the case to this court by writ of error, but he was not compelled to do so. In Franklin v. Kriegshaber, 114 Ga. 947, 41 S. E. 47, a judgment overruling a demurrer was brought to this court for review, and a bond with security was given for the eventual condemnation money. After judgment of affirmance, the question arose as to what was the extent of the liability of such a bond, and it was held not to extend further than the costs of prosecuting the writ of error. No question, however, was made as to the right to suspend proceedings by giving the bond. See, also, on the general subject, Berryman v. Haden, 112 Ga. 752, 38 S. E. 53; Harvey v. Bowles, 112 Ga. 421, 37 S. E. 364.

It may be said that the word "supersedeas" does not strictly apply to a stay of proceedings, and that, therefore, a writ of error might operate as a stay without bond. But the term "supersedeas" is often used in a broader meaning than its original sense. See 20 Encyc. Pl. & Pr. 1209; Dulin v. Pacific Wood & Coal Co., 98 Cal. 304, 306, 33 Pac. 123. At first glance, what is said in the first headnote in Jones v. Dougherty, 11 Ga. 305, might seem to be a ruling on the point; but an examination of the entire case will show that the decision really rested on the fact that the bill of exceptions was premature. In Western & Atlantic Railroad v. State, 69 Ga. 524, in which Judge Tompkins of the Eastern circuit presided instead of Chief Justice Jackson, who was disqualified, he used some very broad language indicating that where a judge signed a bill of exceptions to the overruling of a demurrer to a quo warranto proceeding, he had no authority over the cause until remitted from this court to the court below; but in fact a supersedeas bond was filed, under the section of the Code touching the obtaining of a supersedeas, and what was said is to be construed in the light of the facts as they existed. The question directly involved was whether this court should issue a writ of prohibition to stay the lower court; and the court holding that the bill of exceptions was prematurely brought, the writ was denied. What was said in the discussion was in part obiter dictum. This opinion is criticised and the subject discussed in 82 Ga. 763, 9 S. E. 1042, and in Ryan v. Kingsbery, 88 Ga. 364, 14 S. E. 596 et seq. In the latter case the general expressions used in cases where it was ruled that a judge could not sign a second bill of exceptions are also explained (page 367 of 88 Ga., page 598 of 14 S. E.). On page 366 of SS Ga., page 598 of 14 S. E., it was said: "Where a supersedeas has not been obtained, although it might have been by taking the proper steps, the other party may go on with the case at his pleasure, tak ing the chances of an affirmance, and the risk of a reversal." The case then being

considered was one where a receiver had been appointed and exceptions taken, affidavits being filed in forma pauperis. It was claimed that this operated as a stay, so that a proceeding in attachment for failure to deliver property to the receiver could not proceed. The discussion of the question, however, took a broad range. The case of Jordan v. Jordan, 16 Ga. 446, 448, 450, 452, was one where a demurrer to a bill had been overruled and exceptions taken, with no attempt to obtain a supersedeas. The case proceeded, and after a reversal by the Supreme Court, the trial judge set aside all that had been done after the bill of exceptions was taken. In affirming this, Benning, J., said: "Whether there shall be a supersedeas or not, is optional with the party excepting. If he does not do what is necessary to make his bill of exceptions operate as a supersedeas, the other party may go on with the case or not, at his pleasure. If he chooses to go on, he must do so at his peril. Taking the chances of an affirmance, he must run the risk of a reversal; and as by an affirmance he would gain all the ground he passes over, so by a reversal he must lose it all." This was before the Code of 1903, but the additional expression in the Code, already referred to, appears to have been merely a codification. In Gustoso Cigar Co. v. Ray, 117 Ga. 565, 43 S. E. 984, after referring to the ordinary case of a supersedeas under section 5552 of the Civil Code of 1895, and the mode of obtaining a supersedeas where exception is taken to the grant or refusal of an injunction, under section 4925, Lamar, J., adds: "A supersedeas is either a matter of statutory right, or vested in the discretion of the judge of the superior court under Civ. Code 1895, 4321." Aside from cases where obtaining a supersedeas is a legal right upon compliance with certain conditions, and cases of injunction and receivership, the judge of the superior court has been held, under his broad general powers set out in Civ. Code 1895. § 4321, to have authority, as matter of discretion, to grant a supersedeas in cases where irreparable injury would otherwise result (Marks v. Hertz, 65 Ga. 119), and to require proper bond or prescribe proper terms as the nature of the case may require. Southern Express Co. v. Lynch, 65 Ga. 240; Gustoso Cigar Co. v. Ray, 117 Ga. 565, 43 S. E. 984. These, however, were somewhat exceptional cases, involving discharge from arrest under bail trover process. Most of the cases herein cited had reference to a supersedeas to a final judgment. Inasmuch as the act of 1845 provided for excepting to any decision, sentence, judgment, or decree, and declared that the bill of exceptions should operate as a supersedeas to the judgment, sentence, exccution, or decree, upon giving the required bond or filing the required affidavit, when it was expressly declared by the Code that no case should be carried to the Supreme Court on any bill of exceptions sc

long as it was pending in the court below, "unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause," it follows, that as to judgments of the character last referred to, one of two things must be the case; either a stay in the nature of a supersedeas can be obtained after the bill of exceptions has been certified, in the same general manner as a supersedeas to a final judgment is obtained; or else provision has been made for direct exceptions in such cases; but none has been made as to how a supersedeas or stay can be obtained, except as a matter of discretion on the part of the superior court. Under neither one of these views was the present plaintiff in error entitled, as matter of absolute right, to have the trial stayed pending the exception to the overruling of her demurrer. It is not alleged that any supersedeas bond or affidavit was filed, and the presiding judge, in the use of his discretion, decided to proceed with the case.

2. The mortgage was foreclosed in the name of the original mortgagee, for the use of certain named persons to whom it was alleged the secured notes had been transferred. No effort was made to cut off any defense by suing in the name of the transferees as bona fide holders before due and without notice. Any defense which the mortgagor might have had against the original mortgagee was open to her, and it therefore furnished no legal reason against the granting of a rule absolute to merely deny that the notes had been transferred or were held by the persons named as usees of the plaintiff, and to allege that they were only securities in the hands of such persons.

3. A general allegation in an answer that the mortgagor has paid about $50 or $60, for which no credit has been given her, and that she is unable to give the sum or date of each payment, without alleging to whom, or when, or where such payment was made, is demurrable. The answer to the rule nisi was properly stricken on demurrer, and the rule absolute granted.

Judgment affirmed. All the Justices con

cur.

(125 Ga. 438)

ALLEN & HOLMES v. POWELL. (Supreme Court of Georgia. May 16, 1906.) 1. FRAUDS, STATUTE OF ACTION ON CONTRACT-PLEADING-DEMUrrer.

In a petition declaring upon a contract it is not necessary, even if such contract is within the operation of the statute of frauds, to allege that there was a writing. Upon demurrer it will be presumed that the contract was in writing, unless the averments of the petition distinctly show to the contrary.

[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, § 353.] 2. CONTRACTS-PLEADING-PETITION.

The petition was subject to the objection raised in the special demurrer that it did not

distinctly appear whether the plaintiff had any legal or equitable interest in the subject-matter of the controversy at the time of the alleged contract of sale to the defendant and was otherwise defective.

(Syllabus by the Court.)

Error from Superior Court, Colquit County; R. G. Mitchell, Judge.

Action by D. B. L. Powell against Allen & Holmes. Judgment for plaintiff. Defendants bring error. Reversed.

Powell brought suit against Allen & Holmes, a partnership. The petition alleged that the defendants were indebted to plaintiff in the sum of $1,550, besides interest, by reason of the following facts: During the month of August, 1903, plaintiff and one Kendall "began negotiations for the purchase" of 10,000 acres of timber land in the state of Florida. "Before such negotiations were terminated," one Smith acquired a fifth interest therein from plaintiff and Kendall. During the same month, and "while negotiations were still pending," the defendants made to plaintiff and Kendall a proposition "to let them in the purchase," agreeing and obligating themselves to pay plaintiff and Kendall $250 each, provided that plaintiff and Kendall would each agree to allow defendants "to come into said trade" and take a two-fifths interest therein. This was agreed to by all the parties concerned. Plaintiff, Smith, and Kendall were each to have a fifth interest. The trade for the purchase of the timber was closed in the same month; the amount paid being $17,000. When the trade was closed the deed to the land was made, and the names of plaintiff, Smith, Kendall, and defendants appeared therein as grantees, in accordance with the agreement above referred to. "This deed was made and executed in Florida, and sent to Moultrie, Ga." When it reached Moultrie the defendants caused it to be returned to the grantor, and another deed made to Kendall, Smith, and defendants as the only grantees. The first deed, in which the name of the plaintiff appeared as a grantee, was destroyed. All of this was done without his authority and against his consent. Within a few days after the second deed was made the grantees therein sold the land for $30,000, realizing $13,000 profit on the transaction. One-half of this sum was received by the defendants. Plaintiff is entitled to $2,600 as his portion of the profits of this transaction, and of this sum $1,300 is due by defendants. In addition to this amount there is due him $250, making the aggregate sum for which this suit is brought $1,550. Plaintiff has demanded this amount of defendants and each of them, and they have refused to pay it. To this petition defendants filed a general demurrer, and also a special demurrer containing numerous grounds. The demurrers were overruled, and the defendants excepted pendente lite. The defendants answered, and the case proceeded to trial, and resulted in