plaintiff himself or any of the parties named as defendants in this action. The lands are not alleged to be wild lands, nor is it shown that any portion of them is occupied by any of the parties, plaintiff or defendant, in this case. And the bare statement of these patent deficiencies in the plaintiff's case renders entirely unnecessary a discussion of the question as to whether or not the petition was subject to demurrer. It is a general rule that, in order for a plaintiff to maintain an equitable petition to remove a cloud upon title, he must show actual possession in himself. See 17 Enc. Pl. & Pr. 306, with numerous citations from nearly every state in the Union. And this court is among the many so holding. "While the law authorizing proceedings to remove clouds on title should be liberally construed, no one except the true owner of the property can maintain such an action." And "except in the case of wild lands, it must appear that the petitioner was in possession, and he must state facts, and not mere conclusions, showing that he has title to the property." Weyman v. Atlanta, 122 Ga. 539, 50 S. E. 492.

But not only has the petition in this case the weaknesses which are developed by the rules just quoted, but, under the principle announced in the case of Thompson v. Etowah Iron Co., 91 Ga. 538, 17 S. E. 663, the court below was correct in holding the bill to be demurrable. While many deeds were referred to and set forth in the petition, no particular deed or set of deeds are disclosed which amount to a cloud upon the supposed title of petitioner. The mere fact that Jane Cooper (she being an entire stranger to the title) made deeds and executed leases to the various parties, no extrinsic facts appearing to show that she or any of her vendees had any other title than the alleged deeds, could not constitute a cloud upon the title of any

one.

"The true legal owner of land of which neither he nor any one else is in actual possession cannot maintain a bill or equitable petition to cancel, as a cloud upon his title, deeds and mortgages, although duly recorded, made by strangers, none of whom, so far as appears, ever had possession of the premises or any conveyance or color of title from the state, or from any one connected with the true title, or any one who ever had actual possession. In order for outstanding conveyances to be a cloud upon title, it is necessary that they of themselves, or in connection with alleged extrinsic facts, should constitute an apparent title; that is, one upon which a recovery could or might be had against the true owner were he in possession and relying upon possession alone. Anything which would force him to attack the adverse title, or to exhibit his own, would be a cloud; anything which would not have this effect, would be no cloud." Thompson v. Etowah Iron Co., supra.

The authorities cited are so conclusive that neither further citation of authority nor

argument is needed to demonstrate that the court below did not err in sustaining the demurrers.

Judgment affirmed. All the Justices con

cur.

(125 Ga. 459)

SAPP v. ELKINS. (Supreme Court of Georgia. May 16, 1906.) 1. LANDLORD AND TENANT-RENT-DISTRESS. When a contract creating the relation of landlord and tenant embraces a sum to be paid as rent of land, and another sum as hire of animals to be used on the rented premises, the whole sum due is rent, and may be collected by distress.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, §§ 1060, 1066.] 2. SAME EVIDENCE.

There was no conflict in the evidence as to the amount due as rent, and the evidence authorized a finding that the plaintiff had a right to apply the payments to the other items. (Syllabus by the Court.)

Error from Superior Court, Wilcox County; L. A. Parker, Judge.

Action by D. M. Elkins against N. E. Sapp. Judgment for plaintiff. Defendant brings erAffirmed.

ror.

D. M. Elkins sued out a distress warrant against N. E. Sapp, for the sum of $250.63, due as rent for a farm in Wilcox county. The warrant was issued by a justice of the peace, and made returnable to his own court. A counter affidavit was made by Sapp. On the call of the case for trial in the superior court, the defendant moved to dismiss the case, upon the ground that the distress warrant showed no jurisdiction in the superior court. This motion was overruled, and the plaintiff was allowed to amend the warrant, making it returnable to the superior court. To these rulings defendant excepted. The basis of the claim of the plaintiff was a note signed by the defendant for $361.91, which recited that the note was given for rent of the farm, and contained a description of the farm. The note had been credited with two payments, one of $73.88, and one of $37.40, leaving a balance due of $250.63. Plaintiff testified that the consideration of the note was made up of the following items; $150 for rent of the farm, "$50 for rent of horses, used on place," and the remainder for corn, fodder, and meat sold to Sapp. The two payments made by Sapp had not been accompanied by any direction as to their appropriation. Sapp testified to substantially the same facts as to the consideration of the note, but swore that two bales of cotton had been delivered by him to the plaintiff with directions to apply them to the rent due upon the land. The jury returned a verdict for the plaintiff for $200. Defendant moved for a new trial upon the general grounds, and to the judgment refusing a new trial he excepted.

Martin Cannon, for plaintiff in error. Hal Lawson, for defendant in error.

sign such a note after the guano has been furnished, or to pay the tenant's note at maturity, can be maintained only by the person extending the credit, or by someone to whom he has assigned in writing the claim which gives rise to the cause of action.

2. VENUE-CODEFENDANTS-COUNTY OF RESI

DENCE.

The writer of the letter cannot be properly joined as a codefendant to a suit brought in a county other than that of his residence against the tenant on the note executed by him, for the reason that the landlord never, in fact, became a joint promisor with his tenant relatively to the contract evidenced by the note, and the tenant did not become jointly liable with the landlord because of his refusal to comply with the undertaking assumed by him in the letter upon the faith of which credit was extended to the tenant.

(Syllabus by the Court.)

Error from City Court of Quitman; W. B. Bennett, Judge.

Action by W. L. Adams against J. C. Mosely and W. W. Williams. Judgment for defendants, and plaintiff brings error. Affirmed.

This case was dismissed on demurrer in the trial court, as to one of the defendants to the action, and exception is taken to the judgment sustaining the demurrer. The plaintiff, W. L. Adams, as surviving partner of the firm of Brice & Adams, brought suit against J. C. Mosely, of Brooks county, and W. W. Williams, of Washington county, claiming that they were indebted to him in the principal sum of $169.40 by reason of the following facts: On February 25, 1903, the firm of Brice & Adams, then doing business in the town of Pavo, Thomas county, were engaged in selling fertilizers for the VirginiaCarolina Chemical Company and the Valdosta Guano Company. On or about February 1st, J. C. Mosely came to plaintiff and said he desired to buy fertilizers to use on the place he had rented from W. W. Williams, and plaintiff told Mosely the firm would not sell him the fertilizers unless Williams would "be good for it." On February 25th Mosely came back to plaintiff and gave him the following letter from Williams: "Macon, Ga., Feb. 14, 1901. Mr. J. C. Mosely, Dear Sir: I will sign guano note with you for all you want to use on the place. [Signed] W. W. Williams." On the strength of this letter, Brice & Adams, acting as agent for the two corporations above named, sold to Mosely $169.40 worth of fertilizers, and took his notes for the same, copies of which are attached to the petition. The fertilizers were used on the place of W. W. Williams, but he refused to sign the notes with Mosely or to pay the same or any part thereof. "Petitioner, as surviving partner of the firm of Brice & Adams, is now the owner of said notes." The petition concluded with a general prayer that the plaintiff recover of J. C. Mosely and W. W. Williams the sum of $169.40, together with interest at 8 per cent. from October 1, 1901, and also 10 per cent. attorney's fees if any defense was filed and not sustained; that process issue against the defendants named, etc.

were:

Suit was brought in the county court of Brooks county. The grounds of the demurrer (1) That the county court had no jurisdiction over Williams, who was a resident of Washington county; (2) that the petition set forth no cause of action against him, no privity of contract between him and the plaintiff being shown; (3) that the petition does not show when and under what circumstances Williams refused to sign the notes, nor that the plaintiff presented them to him for signature or notified him at any time that any fertilizers had been sold to Mosely; (4) that the facts set up disclose that even if Williams could be regarded as security for the debt of Mosely, the conduct of the plaintiff in failing to notify Williams increased his risk, and he was therefore released from any liability; (5) that the plaintiff fails to show that he has ever acquired any right, title, or interest in the said claim against Williams, or has ever legally acquired any right or title to the notes declared on; and (6) that the petition does not show any legal reason why attorney's fees should be allowed. This demurrer was filed in the name of W. W. Williams, the other defendant not joining with him in presenting the defense therein set up. The plaintiff amended his petition by relinquishing all claim for attorney's fees against Williams and asking a recovery of interest at the rate of "seven per cent. from him from the time said notes were due," and by alleging that "said notes and said letter from Williams, dated February 14, 1901, became the property of petitioner before said suit was filed." The exhibits attached to the petition disclose that one of the notes signed by Mosely was for the principal sum of $152.40, payable to the "Virginia-Carolina Chemical Company, or order" (not indorsed), on or before October 1, 1901 and dated February 25, 1901; while the other note was for $17 principal, was dated April 27, 1901, and was payable on or before October 1st., to "the Valdosta Guano Company, or bearer," at the Citizens' Bank of Valdosta, Ga.

S. S. Bennett, for plaintiff in error. L. W. Branch, for defendants in error.

EVANS, J. (after stating the facts). On the argument here, counsel for the plaintiff in error characterized the written instrument addressed to J. C. Mosely and signed by W. W. Williams as a "letter of credit," notwithstanding it did not name the amount for which credit could be extended (Hopkins v. Cooper, 28 Ga. 392), and purported to be a proposal to sign a guano note (Scribner v. Rutherford, 65 Iowa, 551, 22 N. W. 670), instead of being couched in the usual form of an absolute undertaking to pay the money advanced or the amount for which credit might be given upon the faith of the writing. See 18 Am. & Eng. Enc. L. (2d Ed.) 831, 832; 2 Daniel, Neg. Instr. (5th Ed.) § 1790 et seq.; 7 Cent. Dig. § 151; pp. 238-243; Atlanta Nat. Bank v. Northwestern Fertilizing Co.

83 Ga. 356, 9 S. E. 671. In the view we take of the case, it is not, however, necessary for us to make any definite ruling touching this delicate question of terminology, or to undertake to decide what liability (if any) the writer of the letter incurred.

1. In the first place, the plaintiff does not show that either he or the firm of which he is the surviving partner ever became vested with a legal right to call Williams to account for his refusal to sign the notes declared on or to pay the same in whole or in part. By amendment, the allegation was made that "said notes and said letter from Williams, dated February 14, 1901, became the property of petitioner before suit was filed." If this statement was anything more than a bare conclusion of law, it amounted to no more than an assertion that the plaintiff had (in some manner unexplained) become the owner, legal or equitable, of the notes, and also the proprietor of the letter itself, which had lost whatever commercial value it had ever had, since credit thereon could no longer be extended. The plaintiff's firm did not accept any invitation which this letter may have held out to persons to look to the writer for payment for guano purchased by Mosely. On the contrary, the plaintiff says the credit extended to Mosely on the faith of the letter, was given him by the Valdosta Guano Company and the Virginia-Carolina Chemical Company, and that the only connection which the firm of Brice & Adams had with the transaction was to act as the agent of these two companies in selling the fertilizers. If the writing was a "letter of credit" in a technical sense, then each of the companies extending the credit could maintain an action of assumpsit thereon (Lawrason v. Mason, 3 Cranch, 492, 2 L. Ed. 509); or, if it merely amounted to a proposition to become surety on a guano note, and the proposal was sufficiently definite and was accepted by these companies, they could, after furnishing the fertilizers and presenting a note to be signed by the writer, predicate upon his refusal to sign an action for damages for the breach of a contract. Scribner v. Rutherford, 65 Iowa, 554, 22 N. W. 670. In either event, the chose in action (the claim upon which depended the right to sue in assumpsit or for breach of contract) would be assignable. Civ. Code 1895, §§ 3077, 3079. But before the plaintiff could be permitted to maintain a suit against Williams based upon the writing, the former would have to allege and prove that the chose in action had been duly assigned in writing, either to his firm or to him as surviving partner. Turk v. Cook, 63 Ga. 681; Steele v. Gatlin, 115 Ga. 931, 42 S. E. 253, 59 L. R. A. 129. One of the special grounds of the demurrer filed by Williams was that the "petition does not show any privity of contract between the plaintiff and said defendant." There could be no privity of contract between them unless the plaintiff, by legal assignment and trans

fer in writing, became vested with the legal title to the chose in action; and his equivocal amendment to the effect that the letter written by Williams "became the property of petitioner before suit," did not meet the specific objections raised by special demurrer to his prosecution of the suit. It does not appear that either of the guano companies has ever undertaken to assign its claim against the defendant Williams.

2. Another and insuperable objection to the maintenance of the suit against Williams is that it was not brought in the county of his residence. The suit against him was joined with one upon the promissory notes against Mosely, the maker thereof. Even if Williams ought to have signed these notes, the fact remains that he did not do so. One of the results of his refusal so to do was to deprive the holders of the notes of the privilege of joining him as a codefendant in a suit thereon brought against Mosely in the county of the latter's residence. Had Williams actually signed the notes, the trial court would have had jurisdiction of such an action-a suit against "joint, or joint and several obligors or promisors." Civ. Code 1895, § 4952. But the maker of one contract cannot be sued, in a county other than that in which he resides, together with the maker of a separate and independent contract to which the former never became a party. Renfroe v. Shuman, 94 Ga. 153, 21 S. E. 373; Baker v. City Nat. Bank, 94 Ga. 88, 21 S. E. 159, unless the relation of maker and indorser of a promissory note exists between them. Civ. Code 1895, § 4953. Mosely, the maker of the promissory notes, was not a party to the writing signed by Williams, and Williams was not a party to the contract evidenced by these notes. It would be absurd to say that Mosely, whose only default was failure to pay his notes, could be held liable in damages because Williams refused to sign the notes, or that Mosely could be joined as a party defendant to an action of assumpsit based on the letter addressed to him by Williams and used for the purpose of securing credit. Mosely's agreement was to pay the notes, not to become the surety of Williams or to guarantee his signing the notes as a joint principal or surety. It is equally clear that Williams never agreed to pay any open account against Mosely for fertilizers furnished him on credit, but only to sign with him a guano note, presumably as surety; that is to say, Williams never actually entered into any contract of suretyship, but, at most, indicated by his letter a willingness to enter into such a contract in a particular way, and in that way only. However, if by any stretch of the imagination it can be assumed that Williams became bound as surety to pay Mosely's guano account, then we are confronted with the fact that, so far as appears, there has never been any assignment of that account to the plaintiff, and, moreover, the suit brought by him is not upon

open account, but the promissory notes signed by Mosely are specifically declared on, and complaint is made of the refusal of Williams to sign those notes or to pay them when they fell due. The demurrer filed in behalf of Williams distinctly raised the point that, inasmuch as the petition disclosed that he was a resident of Washington county, the county court of Brooks county was without jurisdiction to entertain the suit, so far as he was concerned; and the trial judge could hardly have done otherwise than dismiss the action as to Williams, for the petition, instead of alleging facts showing that he and Mosely were joint promisors, disclosed the contrary, and set forth the complaint that Williams had wrongfully refused to become a joint promisor with his codefendant.

Judgment affirmed. All the Justices con

The contract declared on and alleged to have been fully performed on the part of the plaintiff was, in effect, that the defendant's intestate agreed, in consideration of services to be performed in taking care of his invalid mother, "that petitioner would share a child's interest in whatever was accumulated by the three" during the life of the mother and her son. Held: (1) That this agreement was unenforceable as to any property belonging to or acquired by the mother, inasmuch as she was in no wise a party to the contract; (2) that, in the absence of an undertaking on the part of the son to take appropriate steps to legally adopt the plaintiff as his child, or to make provision for her by will or otherwise, no breach of the contract resulted by reason of his death without his doing more than to express a desire during his last illness that the plaintiff should share as an heir in his estate; and (3) that it is not within the power of the courts, by virtue of such a contract, to grant the plaintiff's prayer that "she be found to be an heir of said estate" and awarded an amount equal to a child's part thereof. The remedy of the plaintiff was to sue in assumpsit for the value of the services performed by her. (Syllabus by the Court.)

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

Action by Sallie Bunting against Hattie Dobson. Judgment for defendant, and plaintiff brings error. Affirmed.

R. A. Kendrick, for plaintiff in error- Buie & Knight, for defendant in error.

EVANS, J. This is a suit brought by Mrs. Sallie Bunting against Mrs. Hattie Dobsou, as administratrix of the estate of J. T. Dobson, deceased, and the question presented for determination is whether or not the trial judge erred in sustaining a general demurrer to the plaintiff's petition. She therein alleged that she had for many years, agreeably to the terms of a contract between herself and J. T. Dobson, taken care of his invalid moth

er, who died shortly before the date of his death, leaving him as sole heir at law of her estate; that during his life, plaintiff had lived at his home, after entering into the contract aforesaid, and had, by her services, assisted him in accumulating considerable property; that he left an estate worth some $9,000, exclusive of all indebtedness, in which she claims a one-third interest, inasmuch as during the long term of her service she was paid nothing, and received nothing outside of clothing and provisions; that Dobson left a wife and child, who, immediately after his death, drove plaintiff from his home, notwithstanding plaintiff asserted her claim to an interest in his estate and demanded that she be given a child's part according to her contract with him; and that during the last moments of his illness he expressed his request and desire that she should share as an heir to his estate. She prayed that "she be found to be an heir of said estate, and have and recover from the said estate the sum of $3,000." There is no attempt on the part of the pleader to declare on a quantum meruit. There is not the slightest suggestion in the petition as to the value of the services rendered, nor any prayer to recover for such services. If any cause of action at all is alleged, it is one for damages for an alleged breach of an express contract. The contract declared on is stated in the second paragraph of the petition as follows: "Petitioner shows to the court that she is a relative of the deceased, J. T. Dobson; that the mother of the deceased was an invalid on or about the 15th day of August, 1883, and, owing to this fact, it was impracticable for the said J. T. Dobson to pursue his daily occupation without some one to look after and care for his said mother; and that on or about the time aforesaid, the deceased came to your petitioner, and it was covenanted and agreed upon between them that if your petitioner would leave her home and come and live with the said J. T. Dobson, and look after and care for his invalid mother during the life of either of them, that petitioner would share a child's interest in whatever was accumulated by the three parties aforesaid."

The only interpretation that can be placed upon this contract is that it was an agreement between two parties that the accumulation of property subsequently to the contract by the parties thereto and by a third person should ultimately be divided upon the basis that, should one of the two parties to the contract survive the other, she should receive a "child's interest in whatever was accumulated by the three." The plaintiff asserts that at the time this contract was entered into, Dobson "had comparatively nothing, but that during the 20 years of her service in the said home he accumulated a considerable amount of property, money," etc. It is clear that two parties to an agreement cannot contract for the disposition of property belonging to or thereafter acquired by a third per