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loos-surrowest-ormation AND FFECT.

When an equitable petition was filed by certain members and officers of a fraternal order not incorporated in this state, on behalf of themselves and other members, and on demurrer raising, among other points, the point of want of proper parties, and that it appeared that the Supreme Lodge of the order was a corporation of the District of Columbia and was not made a party, an amendment was presented for the purpose of making it a party, adding other allegations, and by order off". court the amendment was allowed, the Supreme Lodge was made a party, and the case was directed to proceed on behalf of both it and the original plaintiffs, to which order no exception was taken, this optrated as an adjudication that there was an action pending with sufficient parties to authorize amendment, and that the party added was a proper party.

2 INJUNCTIONs—PRELIMINARY INJUNCTIon— GROUNDS-CORPORATIONs—INFRINGEMENT of NAME. Inasmuch as some of the plaintiffs are members and officers of an unincorporated fraternal Association of this state, and proceedin by equitable petition filed by themselves j others of the class, and another plaintiff is the Supreme Lodge of the organization incorporated in the District of Columbia, and the defendants We been operating and are seeking to be inCorporated in this state under a name which is claimed to be an infringement of the name of the Plaintiff's association, and the question is involved, whether and how far the plaintiff, which is a foreign corporation, might §: affected by the state's granting a charter to the defendants as a Omestic corporation in the name and for the Purpose asked, and also whether there is a fraudulent purpose or design to so infringe, under all the evidence the presiding judge should ave enjoined the defendants from obtaining the sharter applied for, so as to preserve the status spect thereto until, on final jury trial, all of the questions of law and fact can be fully adjudicated. |E|. Note—For cases in point, see Cent. Dig. Vol. 27, Injunction, $304–306.) 3. SAME. Having determined that the court erred in ofusing to grant an injunction as to the charto applied for, we allow the ruling of the chancellor denying the injunction in other matters to *and until the final trial or further order of ourt, leaving open all the other questions for Uture determination. See Foster v. Blood Balm Co., 3 S. F. 284, 77 Ga. 216. 4. SAME, The rulings here made do not conclude any *tions of law or fact on the final trial of the * except as ruled above, and all are left open to be then determined.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action between Grand Lodge Knights of Pythias of Georgia and C. C. Creswell and others. From the judgment, Grand Lodge Knights of Pythias of Georgia brings error. A flirnied, with direction.

John P. Ross and H. Douglas, for plaintiff in error. Iłell, Pettigrew & Bell, for defendauts in error.

ROAN, J. Judgment affirmed, with direction.

FISH, C. J., and EVANS and ATKINSON, J.J., being disqualified, Judges GOBER, of the Blue Ridge circuit, ROAN, of the Stone Mountain circuit, and EDWARIOS, of the Tallapoosa circuit, were designated to preside in their stead.

FENDER v. WALDOSTA I,UMBER CO. (Supreme Court of Georgia, July 10, 1907.) NEW TRIAL–GROUNDs.

The only grounds of the motion for a new

trial being that the verdict was contrary to law and the evidence, and the evidence being sufficient to support the verdict, there was no error in overruling the motion.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, New Trial, § 142.]

(Syllabus by the Court.)

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

Action between J. F. Fender and the Valdosta Lumber Company. From an order denying a new trial, Fender brings error. Af. firmed.

J. A. Whitaker, for plaintiff in error. Woodward & Smith and O. M. Smith, for defendant in error.

FISH, C. J. Judgment affirmed. All the Justices CODCur.


(Supreme Court of Georgia. July 11, 1907.)


Where a passenger boarded a railroad. train at Fort Valley for the purpose of going to Smithville, and tendered in payment of his transportation a mileage book, which, upon, examination, was found not to contain suffi. cient mileage for the journey, but only suffi. cient to carry the passenger, to Marshallville. and the conductor informed the passenger that he intended to stop at Marshallville, that the ticket office would be open, and that the passenger could buy a ticket from the agent at that point, and on arriving at Marshallville the passenger left the , train immediately for the purpose of purchasing a ticket, and found the ticket, office open, but the agent, engaged in other business than selling tickets, did not wait on plaintiff immediately, and where it appeared that there was sufficient time for the ticket to be purchased, if the agent had attended to the matter, and plaintiff boarded the train without having obtained a ticket, for the reason that the train was about to depart, and these facts were known to the conductor, and the plaintiff tendered the conductor three cents per mile from Marshallville to Smithville, the conductor had no legal right to put him off the train because he refused to pay four cents per mile. [Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, $ 1433.]


(Syllabus by the Court.)

Error from Superior Court, Macon County; Z. A. Littlejohn, Judge.

Action by W. O. Brown against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error. Heversed.

Brown sued the railway company, alleging that he boarded the train of the defendant at Fort Valley for the purpose of going to Smithville. When the conductor approached he handed him a mileage book, and was: informed by the conductor that the mileage in the book was not sufficient to take him to Smithville. When the plaintiff boarded the train he thought he had sufficient mileage to carry him to Smithville. When the conductor informed him to the contrary, he of. fered to pay him in cash whatever amount was necessary to continue his transportation to Smithville, when the conductor replied: “I have got to stop at Marshallville, and the office is open, and you can buy a ticket from the agent.” On arriving at Marshallville plaintiff left the train immediately for the

purpose of purchasing a ticket, but the agent

was engaged with his express business, and could not wait on plaintiff, and the conductor did not stop a sufficient length of time for him to secure the ticket, but waved the train ahead just as the agent was prepared to issue the ticket. Plaintiff then boarded the train, and the conductor demanded four cents per mile from Marshallville to Smithville. Plaintiff refused to pay this amount, but offered to pay fare at the rate of three cents per mile, plus 15 cents, which offer was declined. The conductor then stopped the train at a flag station, known as “Winchester,” about two miles from Marshallville, and forcibly ejected plaintiff from the train. It is alleged that according to the rules and regulations of the company the plaintiff was entitled to ride from Marshallville to Smithville upon payment to the conductor of three cents per mile for the distance in excess of the mileage contained in the book. It is also alleged that the conductor had no right to demand four cents per mile from Marshallville to Smithville, as he knew that the plaintiff had exercised every effort to secure a ticket at Marshallville, and therefore he was entitled to ride on a cash fare of three cents per mile. The petition then alleges in detail the damages claimed to have been sustained on account of being ejected at night in the cold, and being required to ride

in a private conveyance two miles to Marshall ville, etc. At the conclusion of the plaintiff's testimony the judge granted a nonsult, and the plaintiff excepted.

Twiggs & Oliver and Jas. M. Du Pree, for plaintiff in error. Lawton & Cunning. ham and W. D. Kiddoo, for defendant in error.

CORB, P. J. (after stating the facts). The plaintiff was certainly entitled to use his mileage book for the purpose of transportation to the last station to which the train was scheduled or accustomed to stop, embraced within the number of miles remaining in the book. According to the averments in the petition this station was Marshallville. He intended to go to Smithville, a station much further on, and thought he had mileage sufficient for that purpose. He was mistaken. But, even if he had not labored under this misapprehension, he could not have secured a ticket at Fort Valley from Marshallville to Smithville in order to complete his journey. The plaintiff was rightfully on the train, therefore, from Fort Walley to Marshallville; and the question is Whether he used reasonable diligence to Secure a ticket after Marshallville was reached. The conductor was under no obligation to delay the train at Marshallville for the purpose of allowing him to secure a ticket. Neither was the ticket agent at Marshallville under any obligation to keep the ticket office Open for the sale of tickets while the train was standing at the station, if Marshallville was a point at which the agent was authorized to close the ticket office during such time. But whether Marshallville was a point at which the agent was authorized to close his office is immaterial; for it distinctly appears that the ticket office was open, and the agent refused to sell the ticket immediately upon demand, for the reason that he was engaged in business connected with the express company. The agent did not place his refusal to sell the ticket upon the ground that the time for selling tickets for that train had expired, but expressed a willingness to sell the ticket, and delayed the sale simply for the reason that he was temporarily engaged with other matters. It the time that the train was at the station was sufficient for the plaintiff to have purchased a ticket if the agent had been at his place as ticket agent, the failure of the plain: tiff to secure a ticket from Marshallville to Smithville was not his fault, but was the fault of the company. If, when the train reached Marshallville, the ticket office was closed, and properly closed, the conductor would have had the right, when the plaintiff re-entered the train, to demand of him four cents per mile; but if the ticket office was open, and the failure to procure the ticket was due to the refusal of the agent to sell a ticket because engaged in other business, especially when such other business was not connected with the business of the railroad company, the conductor, upon being informed of the circumstances which caused the failure to procure the ticket, had no authority to demand more than three cents per mile. A prospective passenger must use due diligence, according to all the circumstances of the case, to procure a ticket before boarding a train, or rest content to pay the additional charge imposed upon those who ride without tickets; but, when such diligence has been lised, the right of the conductor to make the additional charge does not exist. The plaintiss had the right to ride from Fort Valley to Smithville upon a ticket purchased from Fort Valley at three cents per mile for the entire distance. He had a right to ride from Fort Valley to Smithville upon two tickets, one purchased at Fort Valley to carry him to Marshallville, and the other at Marshallville to carry him to Smithville. If he boarded the train at Fort Valley with a ticket there purchased from Fort Valley to Marshallville, he took the chances of being able to purchase a ticket from Marshallville to Smithville while the train was standing at the station; and if, through no fault of the railroad company, he failed to secure a ticket at Marshallville, he must rest content to pay the additional charge. When he boarded the train at Fort Valley with his mileage book, he was in the same position as if he had bought a ticket from Fort Valley to Marshallville. His journey was really divided into two parts. His right to transportation from Fort Valley to Marshallville was complete and undenied. His right to trailsportation from Marshallville to SmithWille at the ticket rate depended upon whether the ticket office was open at MarshallWille, and he exercised due diligence in endeavoring to buy a ticket, and failed from 10 Want of diligence on his part. This case is very similar to the case of Georgia Railroad Co. v. Murden, 83 Ga. 753, & Ga. 384. In that case the plaintiff boarded the train at Robinson, a flag station, to go " Augusta, and the conductor demanded out cents per mile for the entire distance, and there was a controversy between the Paintiff and the conductor as to whether a Possenger who boarded a train at a flag *tion could be charged more than three outs per mile. The conductor finally told the plaintiff that if he would pay him four outs per mile to Crawfordville, and there ove the train and board it again, he could * the remainder of the distance for three *ts per mile. It seems that there was a rule of the Company which authorized a "luctor to accept a cash fare of three * per mile on night trains when an office * closed. The plaintiff left the train at Crawfordville and attempted to purchase a * but the office was closed, when here. outered the train the Conductor demanded our cents per mile notwithstanding the fact

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that the office was closed, and upon the refusal of the plaintiff to pay this amount he was ejected from the train. The only disference between that case and this is that in that case the office was closed and no tickets were being sold, while in the present case the office was open, but the agent refused to sell the ticket until he had transacted other business. So far as the diligence of the passenger was concerned, it was the same in each case. Each did all that reasonable diligence required. The passenger in the first instance went to the ticket office and found it closed, and the passenger in this Case went to the ticket office and found it Open, but no one there to sell the ticket. This case is, in principle, controlled by the ruling in the Murden Case above cited. The court erred in granting a nonsuit. Judgment reversed. All the Justices concur.

HESTER v. GAIRDNER. (Supreme Court of Georgia, June 15, 1907.)

1. MoRTGAGEs—DEBTs SECURED–FUTURE AD. VANCES. The demurrer was properly overruled. 2. SAME-PARol, Evi DENCE. If a deed is made to secure a particular debt, it cannot be extended by a subsequent parol agreement so as to secure other debts. But, where a deed in the form of a warranty deed was given to secure an indebtedness, and no lond to reconvey was made, and there was nothing in the written contract to fix the amount of indebtedness secured, but the deed expressed a certain annount as a consideration thereof, in a suit by the grantee against the grantor or his administrator, seeking a general judgment and also to establish a lien on the property, it was competent to show by parol evidence that the deed was given to secure an indebtedness already existing to the amount expressed as a consideration, and also to secure future advances to be made. [Ed. Note:-For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 237–245, 247.] 3. Evi DENCE—PA Rol, Evidence—CoNTRA proTION OF ASSIGNMENT. Where a note was transferred by written assignment from the payee to one person, it was not competent to ask him, the assignee. to state in parol whose note it was, so as to prove title thereto in another. 4. TEIAL–Issu Es of FACT. That the plaintiff amends his petition, so as to change, certain allegations, does not raise an issue with himself which must be submitted to a jury. 5. SAME-DIRECTION OF VERDICT-CoN FLICT IN Ev1 DENCE. There was some conflict in the evidence, and the court erred in directing a verdict,

(Syllabus by the Court.)

Error from Superior Court, Elbert County: H. M. Holden, Judge.

Action by Lavonia Gairdner, as guardian, against Matilda Hester and others. Judgment for plaintiff, and defendant Hestor brings error. Reversed.

Anderson Hester made a deed in the form of an ordinary warranty deed to Mrs. Lavonia Gairdner, guardian. It was dated December 6, 1900, and expressed a consideration of $243.40. Lavonia Gairdner, as guardian for James P. Gairdner, brought suit against Blackwell, as administrator of Hester, alleging: That up to December 6, 1900, she had advanced to Hester the sum of $243.40, and that on said date she took an absolute deed from him to secure the payment of the sum named. That after the date of the deed she advanced to the decedent $156.99 in the aggregate. “Said sum was advanced under the agreement with said Edmunds, alias Hester, that all such sums so advanced to him should be secured by said deed, and that your petitioner should not deed said land back until all of said moneys were fully paid petitioner.” The giving of notice of an intention to sue in order to claim attorney's fees was alleged, in accordance with the act of 1900. The plaintiff prayed for a general judgment for the sum of $470, besides interest, that the judgment should be a special lien upon the land described in the deed, that the plaintiff be allowed to make to the administrator a deed, and that the land be sold as the property of the estate for the purpose of first paying this debt and then being administered. The plaintiff amended her petition by alleging as follows: “At the time said deed was given said Anderson Hester owed petitioner the amounts of said notes, and in order to secure said notes said Hester gave said deed, and also to secure whatever might be advanced by petitioner subsequent thereto. Since the making of said deed and said notes, petitioner has advanced said sum of $158.99 under the agreement that said deed should secure all future advancements made to said Anderson Hester by petitioner, and at the time said deed was made Said Gairdner, plaintiff, agreed to make further advances.” Plaintiff further amended by striking from the original petition every thing in conflict with this amendment. Matilda Hester, the widow of the decedent, alleged that the equity of redemption in the land had been set apart to her as a year's support, and she was made a party defendant. She filed a demurrer to the petition, which was overruled. She also filed an answer, in which she denied that the plaintiff was entitled to a lien upon the land for an amount in excess of $243,40, with interest. She also denied that the plaintiff was entitled to recover attorney's fees, because the law under which the plaintiff gave the notice and claimed attorney's fees was not in force when the note sued on was given. On the trial, at the close of the evidence, the presiding judge directed a verdict in favor of the plaintiff for $423.79 principal and $112.56 interest. Defendant moved for a new trial. It was overruled, upon the plaintiff's writing off part of the recovery. Defendant Hester excepted. C. P. Harris, for plaintiff in error. Joseph N. Worley, for defendant in error.


LUMPI(IN, J. (after stating the facts). 1. The demurrer was without merit, and was properly overruled.

2. Objection was made to the admission of Darol evidence offered for the purpose of showing that when the deed was made Hester and the agent of the plaintiff agreed that it was to secure, not only the amount of money already advanced, but also that which might be subsequently advanced, and that the plaintiff was not to convey the land back to Hester So long as any part of the money that might be subsequently advanced by her to him should remain unpaid. This was objected to on the ground that it tended to establish a parol agreement made contemporaneously with the deed, and thereby to add to the deed terms not expressed in it. The objection was overruled. Of course, the general rule is that a written contract cannot be varied by parol evidence. The deed here involved was on its face an ordinary warranty deed. It described no debt and contained no provision for any reconveyance. There was nothing to show that any bond for title, or written contract to reconvey title upon the payment of any particular debt or amount, was made. “A deed or bill of sale, absolute on its face and accompanied with possession of the property, shall not be proved (at the instance of the parties) by parol evidence to be a mortgage only, unless fraud in its procurement is the issue to be tried.” Civ. Code 1895, § 2725. If the debtor remained in posses. sion, he or his widow, who took a year's Support in the property, could show that the conveyance was only intended to secure a debt, and thus to operate as an equitable mortgage. Carter v. Hallahan, 61 Ga. 314. The creditor could bring ejectment on such a title; or, if the creditor chose, the deed could be foreclosed in equity as such a mortgage. Bateman v. Archer, 65 Ga. 271. It does not appear that the possession was surrendered to the grantee. The grantee did not claim the property as absolute owner, but claimed only that she held the title to secure an indebted: ness. The defendant did not contest this fact, but only the amount of the indebtedness thus secured. The exact question, therefore, is whether the amount expressed as the consideration of the deed was conclusive as to the entire amount of the indebtedness Se: cured, or whether it was competent to show by parol that the consideration of the deed included the securing, not only of the amount named, but also of other advances to be Inade.

If a deed is made to secure a particular debt, it cannot be extended by a subsequent parol agreement so as to secure other debts. This may be done by written contract. But to allow a deed to be extended by parol, so as to include an indebtedness which was not secured by it when made, would be, in effect, to change or add new conditions or purposes to a deed by parol. Pierce v. Parrish, 111

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Ga. 725,730, 37 S. E. 79; Wylly v. Screven, QS Ga. 213, 25 S. E. 435; Johnson v. Anderson, 30 Ark. 745; Stoddard v. Hart, 23 N. Y. 55. But where there is nothing in the written contract between the parties limiting the security to a particular amount or debt, and the only amount stated is as a consideration for a deed which is in form an ordinary warranty deed, the actual consideration of such deed existing at the time of its making may be shown by parol. At common law the weight of authority was to the effect that the recital in a deed of conveyance of the payment of the consideration money could not be denied by parol; but even there the judges sometimes expressed doubt on the subject. See Rountree v. Jacob, 2 Taunt. 141: Lampon v. Corke, 5 Barn. & Ald. 606; Baker v. Dewey, 1 Barn. & C. 704. The weight of authority in America is to the contrary, and treats the recital of the payment of the purchase money like the mention of the date of the deed and other matters incidental and collateral to the principal thing, and holds that, while the grantor is estopped from denying the conveyance, yet the recital is considered at most but prima facie evidence only of payment, in an action of assumpsit to recover the price which is yet unpaid. At an early date it was held by this court that the recital of the payment of the consideration money in a deed does not fall within the rule by which a party is estopped to deny it. Harwell W. Fitts, 20 Ga. 723. In Martin V. Gordon, 24 Ga. 533, it was ruled that upon a suit for damages for a breach of warranty the amount of consideration money recited in the deed could be inquired into. Two of the judges held that this could be done, not only against the grantee of the warranty, but against any subsequent grantee. Judge McDonald dissented, urging that a grantor ought not to be allowed to name a consideration in his deed, and thus induce subsequent purchasers to rely on it, and afterwards prove that it was untrue, to the prejudice of a bona ide purchaser without notice. It was declared in the original Code, and has been preserved in each of the succeeding Codes, that “the consideration of a deed may always be inquired into when the principles of justice require it.” Civ. Code 1895, § 3500. The exact meaning of the expression “when the principles of justice require it” has not been determined. In the case before us the deed Was admittedly made to secure an indebtedless. An amount was stated as the consid“tation of it; and it was claimed that parol evidence could not be introduced to show, as 4 part of the consideration, the securing of "dvances beyond the amount so named. In Dawson v. Briscoe, 97 Ga. 408, 24 S. E. 157, where a deed to realty of considerable value Purported on its face to be executed upon a "minal money consideration only, it was held that it could be supported by evidence showing that the grantee was the grantor's *ughter, and that the real consideration

was love and affection. In Thompson v. Cody, 100 Ga. 771, 28 S. E. 669, it was held that, where the consideration of the deed was CXpressed as being love and affection. it was, nevertheless, competent to support it by evildence tending to show that there was an additional valuable consideration moving the grantor to its execution. We think, therefore, that it would be competent to introduce evidence to show that the actual consideration of the deed at the time of its execution covered, not only the securing of the debt then due, but also the securing of future advances to be made. But if, when the deed was made, it was to secure a particular debt, it could not be made a security for other debts by a subsequent parol agreement. See, also, on the general subject of parol evidence, Atlanta & West Point R. Co. v. Hodnett, 36 Ga. 680; Johnson v. McComb, 49 Ga. 123; Stone v. Minter, 111 Ga. 45, 36 S. E. 321, 50 L. R. A. 356; Carter v. Griffin. 114 Ga. 321, 40 S. E. 290; Harkless v. Smith, 115 Ga. 350, 41 S. E. 634. On the admissibility of parol evidence to explain the consideration or identify the debt to be secured by a mortgage, there have been numerous decisions. In Sutton V. Sutton, 25 Ga. 383, it was held that “a discrepancy between the debt and the mortgage given to secure it may be explained by parol proof.” In Gunn v. Jones, 67 Ga. 398, the same ruling was made, and it was added: “But a draft having no apparent connection with a mortgage will not be admitted without explanation.” The leading case on the subject is that of Shirras v. Caig (U. S.) 7 Cranch, 34, 3 L. Ed. 260. It was there held that “it is not necessary to the validity of a mortgage that it should truly state the debt it is intended to secure ; but it will stand as a security for the real equitable claims of the mortgagees, whether they existed at the date of the mortgage, or arose afterwards, upon the faith of the mortgage, before notice of the defendant's equity.” In the opinion Marshall, C. J. (page 50 of 7 Cranch), said: “It is true that the real transaction does not appear on the face of the mortgage. The deed purports to secure a debt of £30,000 sterling, due to all the mortgagees. It was really intended to secure different sums, due at the time from particular mortgagees, advances afterwards to be made, and liabilities to be incurred to an uncertain amount. It is not to be denied that a deed which misrepresents the transaction it recites and the consideration on which it is executed is liable to suspicion. It must sustain a rigorous examination. It is certainly always advisable fairly and plainly to state the truth, But if, upon investigation, the real transac‘tion shall appear to be fair, though somewhat variant from that which is described, it would seem to be unjust and unprecedented to deprive the person claiming under the deed of his real equitable rights, unless it be in favor of a person who has been in fact in

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