nia 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 $170, 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 $123.79 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.

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

2. Objection was made to the admission of parol 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 possession, 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 fore closed in equity as such a mortgage.

Bate

man 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 indebtedness. 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 made.

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

jured and deceived by the misrepresentation." This ruling has been generally followed. McKinster v. Babcock, 26 N. Y. 378; Miller v. Lockwood, 32 N. Y. 293; Stover v. Herrington, 7 Ala. 142, 41 Am. Dec. 86; Wilkerson v. Tillman, 66 Ala. 532; Bray v. Comer, 82 Ala. 183, 1 South. 77; Hendon v. Morris, 110 Ala. 106, 20 South. 27; Wilson v. Russell, 13 Md. 495, 71 Am. Dec. 645; Hendrix v. Gore, 8 Or. 407; Summers v. Roos, 42 Miss. 749, 2 Am. Rep. 653; Nicklin v. Betts Spring Company, 11 Or. 406, 5 Pac. 51, 50 Am. Rep. 477; Hall v. Tay, 131 Mass. 192; Tully v. Harloe, 35 Cal. 302, 95 Am. Dec. 102. In most, if not all, of these cases, the amount for which a foreclosure was sought was less than the amount expressed in the face of the mortgage. The exact question as to whether, if a mortgage expresses a certain amount which it is made to secure, this amount can be increased by parol evidence, has seldom been dealt with. In Edwards v. Dwight, 68 Ala. 389, it was said that this was very doubtful; but the point was not decided. In

the later Alabama cases above cited this distinction was not suggested. In 1 Jones on Mortgages (6th Ed.) § 374, it is said: "It is not necessary that the mortgage should express on its face that it is given to secure future advances. It may be given for a specific sum, and it will then be security for a debt to that amount. This definite sum will then limit the extent of the Ilen." But see section 384. Some of the decisions seem to hold otherwise. See Bell v. Radcliff, 32 Ark. 645; Johnson v. Bratton, 112 Mich. 319, 70 N. W. 1021; Johns v. Church, 12 Pick. 557, 23 Am. Dec. 651. In the section of Jones on Mortgages above cited (section 1067) it is also said: "An absolute conveyance may be used to secure future advances, or to secure an existing debt and also future advances. The agreement to reconvey when the advances are repaid is sufficient, although it exists in parol only."

As to a mortgage, the Code says it must "specify the debt to secure which it is given." Civ. Code 1895, § 2724. It may be doubtful whether, if a sum be thus specified as part of the agreement as to the amount to be secured, it can be enlarged by parol. One or two authorities have come to the notice of the writer in which a distinction is drawn between increasing by parol proof a specif- | ic amount agreed to be secured by a mortgage and the admission of parol proof to show what was in fact the consideration of a deed purporting to be an absolute conveyance, though really given as a security. It is not necessary in the present case to determine the rule of evidence in regard to mortgages or instruments stating on their face that they are given to secure only a named amount, or whether the amount so agreed to be secured is a limitation forming a part of a contract which cannot be enlarged by parol. Nor is it necessary to go as far as some of the cases above cited. As already

stated, the instrument here involved is not on its face a mortgage, but a deed. It does not declare that it is given to secure a specified amount, or any amount at all. Apparently no bond to reconvey upon payment of any specified amount was given. In order to show that it is a security at all, parol evidence is necessary. To do this the consideration of the deed must be inquired into, and it must be shown what the real consideration was. Having gone thus far in the introduction of parol evidence, under the rulings of this court already cited in regard to the admission of such evidence to prove that the real consideration of a deed was more or less than that recited, there was no error in admitting parol evidence to show that the indebtedness secured by the deed when it was made was greater than the amount of consideration expressed on its face. No third person has been misled, or has acted to his injury on the faith of the recital. The wife is entitled to a year's support only in the equity of redemption. It is practically a case inter partes. The rights of third persons are not involved.

3. Objection was made to asking a witness, "Whose note is that?" reference being had to a note of the decedent given to one Eberhardt, and afterwards transferred in writing to Jones, a witness. The transfer was in these words: "For value received, I hereby transfer the within note to W. O. Jones"signed by the payee. The answer was, "Mrs. Gairdner's note." Objection was made on the ground that the note was transferred in writing by the payee to Jones, and parol evidence was not admissible to vary the indorsement thereon, or to show that the owner was different from the indorsee. The objection was overruled. The purpose apparently was to show that the note had been taken up by an agent with the funds of his principal, and, though transferred by the payee to the agent individually, that it was really taken up by the principal, and that the amount advanced for that purpose was a part of the indebtedness secured. If the note were transferred to the principal, or were surrendered and canceled, so as not to operate as an outstanding liability of the defendant in the hands of some third party, we see no reason why it could not be shown that the principal advanced the money which accomplished that result. But it is not competent to produce a note which is transferred in writing to one person and baldly show by parol that it belongs to another.

4, 5. The presiding judge erred in directing a verdict for the plaintiff. Counsel for defendant contends that the allegation in the original petition and that in the amendment in regard to the agreement differed, and that this made a question of fact for the jury. But we do not understand that, whenever a plaintiff withdraws or strikes an allegation and substitutes another by amendment, this makes an issue of fact in the pleadings of the party

himself, which must be submitted to a jury. Any admission made by him in his pleadings, though afterwards stricken or withdrawn by amendment, may still be tendered and used as an admission on his part by the opposite party. But a party by amendment does not raise issues of fact with himself, necessitating the assistance of a jury to determine them. There was, however, conflicting evidence in the case. Thus, Jones, the agent of the plaintiff, testified that “no agreement was made about this deed, except what is on its face." Smith, the bookkeeper of Jones, testified to the effect that there was an agreement and understanding between Jones and Hester. He said: "In addition to that, the understanding was that any further indebtedness made thereafter was also to be secured by the deed." Plainly no such agreement as this appears on the face of the deed. There may be some mode of reconciling or explaining these conflicting statements, but they should be passed upon by the jury, not by the judge.

Judgment reversed. All the Justices con

cur.

HALLIDAY v. BANK OF STEWART

COUNTY.

(Supreme Court of Georgia. July 11, 1907.) 1. TRIAL-EXCLUSION OF EVIDENCE-FAILURE TO DEMUR.

Failure to demur to a plea which sets up no valid defense in law does not preclude the plaintiff from moving to exclude evidence offered in its support.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1433, 1436.]

2. RES JUDICATA-EVIDENCE.

The record of a former suit between the same parties is not admissible in evidence in support of a plea of estoppel by judgment, when it appears therefrom that the subjectmatter of the second suit could not have been litigated under the pleadings in the first.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30. Judgment, § 1267.]

(Syllabus by the Court.)

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

Action by N. W. Halliday against the Bank of Stewart County. Judgment for defendant, and plaintiff brings error. Reversed.

Halliday brought suit against the Bank of Stewart County, alleging that defendant was indebted to him in the sum of $22.62, besides interest from November 11, 1899, for money had and received to and for his use, etc., which defendant refused to pay; that it was in like manner and for like reason indebted to him in the sum of $493.36, besides interest from November 28, 1899, which amount it also refused to pay. In its answer defendant denied generally the allegations of the petition, except those as to its corporate character and residence, and then, in the third paragraph, alleged: In 1898

defendant extended to plaintiff a line of bank credit, in its business as a cotton warehouseman and buyer of cotton, under an arrangement and agreement whereby defendant was to accept and pay checks or drafts drawn on it by him for the purchase price of cotton, in favor of the sellers thereof, which cotton plaintiff expected to buy from time to time during the cotton season of 1898; and plaintiff was to attach to the drafts the respective warehouse receipts for the cotton, and defendant was to hold in pledge and as security for the advances thus made a special property in the cotton. Plaintiff was to keep covered by the cotton receipts and other collateral securities, and deposits and payments of money, all such sums of indebtedness as might arise and become owing by him to defendant, as well from advances of money to pay for cotton as also from checks drawn by him on the bank for purposes other than the purchase of cotton. Under this arrangement plaintiff became largely indebted to defendant, and in addition to the cotton warehouse receipts deposited with defendant a certain rent note given by C. D. Grimes and held by plaintiff for 11 bales of cotton, for rent due and payable in 1899, and another rent note given by D. M. Geeslin, due and payable in 1899, for 4 bales of cotton, and agreed that defendant should apply the proceeds of said notes to plaintiff's indebtedness to it. The $22.62 and the $493.36 sued for are the proceeds of said rent notes, and said amounts were duly credited by defendant on the debt which plaintiff owed it; and all the cotton pledged by plaintiff with defendant has been accounted for at its true value, and that the two sums mentioned above, realized from the sale of the rent cotton, have been fully accounted for to plaintiff, and defendant has fully accounted for all property and money of plaintiff which has come into its hands, and is not indebted to him in any sum whatever.

In addition to this plea of payment, defendant in the fourth paragraph of the answer set up the following defense: On March 24, 1899, plaintiff brought in the superior court of Stewart county, against defendant, an action of complaint for personalty, and defendant appeared and defended the suit and filed certain pleas therein. Copies of the pleadings in that case were attached to the answer; it appearing from the petition therein that the suit was in trover for 233 described bales of cotton, alleged to have belonged to plaintiff and to have been converted by defendant. "By said pleas in said case, and particularly the third and fourth special pleas therein, this defendant set up the indebtedness owing by the plaintiff to this defendant as a reason why * plaintiff ought not, in equity and good conscience, recover of defendant the full value of the property sued for, without allowing and deducting the indebtedness owing by plaintiff to

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this defendant, and as a reason why such verdict and judgment should be meet and just and according to equity and good conscience, making due allowance for and taking into account the claims and counterclaims growing out of the mutual dealings between the parties." The suit in trover was tried at the April term, 1901, of the court, upon the issues and pleadings therein, "and evidence was offered as to the indebtedness owing by * plaintiff to this defendant, including and taking into account, as entering into and fixing the balance due on said debt, the aforesaid items of $22.62 and $493.36 in this present action sued for; and said items were passed upon by the court and jury in said case, and by the court the jury were instructed that they might allow the debt, including said items, in fixing the amount of their verdict, and the said items were considered and passed upon by the jury, and the plaintiff received credit therefor, and the same entered into and helped to fix the amount of the verdict and judgment in said case. And in said case a verdict was rendered upon said pleadings, issues, evidence, and instructions of the court, and a judgment duly entered up thereon, a copy of which verdict and judgment is hereto annexed." By an amendment to its answer the defendant added a prima facie case in favor of the plaintiff, and that plaintiff had "the right to recover the amount sued for, save and except for the defense set up in and by paragraphs 3 and 4 of the defendant's answer." It then reiterated its defense of estoppel by judgment as alleged in its original answer, and assumed the burden of proof.

Upon the trial the defendant offered in evidence the record of the trover suit. Plaintiff objected to its admission upon several grounds, one of which was that the record showed upon its face that the subject-matter of the present suit could not have been litigated in the former one. The court overruled the objections and permitted the record to be introduced in evidence. From this record it appears that the defendant in the trover suit filed a general plea of not guilty at the April term, 1899, and in April, 1901, filed an amendment to this plea, which amendment is relied on in the present case by defendant to show that the matter now in controversy was involved in the trover action, under the pleadings therein. The first paragraph of this amendment alleged: Plaintiff "at the beginning of the cotton season of 1898, made an arrangement and entered into an agreement with defendant, whereby defendant was to accept such checks or sight drafts as the plaintiff should draw on defendant, in favor of the sellers, for the purchase price of such cotton as the plaintiff in his business as cotton dealer might buy during said cotton season, * and plain

tiff was to attach to said drafts the ware

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house cotton receipts which represented said cotton, and said warehouse receipts representing the cotton were to pass into possession and belong to defendant upon payment of the drafts; * * and defendant was thereby to become the owner of the cotton." It was agreed that plaintiff should sell the cotton, or any part thereof, upon being called on by defendant so to do, and that upon his failure to do so, "upon request or whensoever plaintiff's account was not fully protected by the value of the cotton and plaintiff's bonus, then defendant had the right to sell in its discretion privately or publicly, and without other notice than that to be given plaintiff as aforesaid, and apply the proceeds thereof to the account of * * plaintiff with defendant," and place "any overplus which might remain to plaintiff's credit in defendant's bank, * * subject to his check." The cotton which forms the subject-matter of the trover suit "was purchased by plaintiff under and in pursuance of said agreement," drafts, with the warehouse receipts attached, being presented to defendant and by it paid, and defendant "became vested with the title to said cotton, with the right to call upon plaintiff to sell said cotton, and with the further right to sell said cotton at private sale, should plaintiff upon request fail or omit so to do." The "plaintiff being, on the day of December, 1898, indebted to defendant in the sum of" $5,860, "for the purchase price of said 233 bales of cotton, and the account of plaintiff being unprotected and in danger of loss by reason of the low price of cotton, and his bonus being exhausted, so paid for by defendant under and in pursuance of said agreement (and being the entire purchase price thereof), fendant on said day called upon" him to sell the cotton, for the purpose of reimbursing defendant, and plaintiff, though afforded a fair and reasonable opportunity so to do, wholly failed and omitted to sell the cotton, or any part thereof. Whereupon defendant, for its own protection, sold the cotton "fairly and honestly, in open market, for its fair value and the best price which defendant was able to obtain therefor," realizing from its sale the sum of $5,378.65, "and said sum was applied to the debt owing to defendant by plaintiff for the purchase of said cotton.

de

* Wherefore defendant says that it is not in possession of the cotton mentioned and described in plaintiff's petition, and is not guilty of the wrongs and injuries set forth in said petition, and * * plaintiff ought not to further have and maintain his said action." The second paragraph alleged: The 233 bales of cotton were sold by defendant, “for and in behalf of said plaintiff, without objection and with his knowledge, acquiescence, and consent, and at a price which [he] authorized and consented to. The proceeds of the sale," $5,378.65, "have been accounted