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presumption is not overcome except by the strongest proof.” There is a presumption that every officer does his duty, and every official entry is supposed to be the act of such officer, yet this is a rebuttable presumption and may be overcome by proof; and, while it is true that an officer's return should not be lightly set aside, yet it would be improper for the court to instruct the jury that the presumption of verity which the entry imported should prevail unless overcome by the strongest proof. Such an instruction is equivalent to an expression by the court as to quantum of evidence necessary to overcome a rebuttable presumption. For this reason the request was properly refused. Judgment on the main bill of exceptions reversed, on the cross-bill affirmed. All the Justices concur.
The accused was charged with the offense of murder. He made a motion to continue the case. The showing for the continuance was made in the name of counsel appointed by the court to defend the accused. In the motion it was stated that Messrs. G. H. Howard and J. L. Kent had been appointed as counsel for the accused late Monday afternoon; that the case was called for trial Tuesday, and that they had not had sufficient time to prepare the case for trial or to confer with the witnesses; that the indictment was not returnod until Monday afternoon, and that the accused was not arrested until Saturday morning preceding the convening of the court; that from investigation made the evidence would develop that the deceased was killed at a negro party, where more than 75 persons had assembled; that the killing occurred at night, outside the house, and that many shots were fired by different parties, and that counsel did not know, and could not, during the present session of court, interview those who were present, to ascertain who saw the shooting; that many saw
it, and, while all of the witnesses were not known, they will swear, if time is given to confer with them to ascertain who they are, that the accused did not fire the fatal shot; that it was impossible for them, under the circumstances, to do justice to their client, or to see that he had a fair trial, such as is guaranteed under the Constitution; that many of the witnesses the accused did not know, but according to the best of his information some of them were living in the county adjoining that in which the indictment was pending; that, when counsel were appointed, they at once issued subpoenas for a large number of witnesses, the names of whom were furnished by the accused, some of whom lived in other counties, and it would be impossible for the officers to summon these witnesses during the present term of court; that, if such witnesses were produced, the accused would be able to prove that the killing was not done by him, but by another; that counsel used all diligence possible under the circumstances; and that the motion was not made for delay, but in order to secure the testimony of these witnesses at the next term. The court overruled the motion to continue, appointed a bailiff to assist counsel in procuring the witnesses desired, and passed the case until Thursday afternoon at 2 o'clock. Error is assigned upon this ruling. When the case, was called on Thursday afternoon, another motion was made to continue the case, upon the grounds stated in the former motion, and upon the additional facts appearing in the statement made to the court by Mr. Kent, of counsel for the accused. The Substance of Mr. Kent's statement was that the bailiff had been endeavoring to find the witnesses, but was unable to do so; that they had not been able to obtain the witnesses for him; that the court had also appointed other counsel besides himself and Mr. Howard, and these had been excused by the court, and that the case should not be pressed to trial until other counsel were appointed in their place; that a number of the witnesses to the transaction lived in Johnson, Jefferson, and Washington counties, and possibly other counties in the state; that counsel had been unable to obtain these witnesses so as to interview them: that some of the witnessos for whom subpoenas had been issued the officer had not been able to find; that the bailiff made every effort to get these witnesses, but now gave the infor. mation that they were not there; that counsel had learned that one of the witnesses possibly did not get the subpoena, and that one lived in Jefferson county very near to the scene of the occurrence; and the accused informed counsel that he could prove by this witness that another man fired the fatal shot; that counsel did not know whether this witness could be brought at that term of the court, but that he had not been brought. The court overruled the motion to continue, and this ruling is assigned as error. The trial resulted
In a verdict finding the accused guilty, and names of those persons who actually wit-
abuse of discretion shown. See, in this conG. H. Howard and J. L. Kent, for plaintiff
nection, Hardy v. State, 117 Ga. 40, 43 S.
E. 434; Thompson v. State, 24 Ga. 297; Bradin error. Alfred Herrington, Sol. Gen., and
ley v. State, 128 Ga. -, 57 S. E. 237. That John C. Hart, Atty. Gen., for the State.
portion of the showing which complains
that other counsel who had been appointed COBB, P. J. (after stating the facts). 1.
to assist in the defense of the accused were Motions for continuance are addressed to the
excused, and no others had been appointed sound legal discretion of the court. This is
to take their place, is not referred to in the the rule in all cases, including those where
brief of counsel, and this point will be treatthe accused is charged with a capital felony.
ed as abandoned. The Constitution guarantees to every one
2. The motion for a new trial contains no charged with a crime the privilege and bene
other special grounds than the ones dealt fit of counsel. This constitutional guaranty
with in the preceding portion of this opinion. amounts to nothing, unless the counsel se
The evidence amply authorized the verdict, lected by the accused or appointed by the
and we see no reason for reversing the judgcourt are given a reasonable time to as
ment. certain what is the character of the case that
Judgment affirmed. All the Justices conthe accused is called upon to defend. There
THRELKELD v. STATE.
1. CRIMINAL LAW WRIT OF ERROR-ESTOPtinuance that the only question involved PEL TO ALLEGE ERROR. was: Who fired the fatal shot? That there When, in the trial of a murder case, the was a homicide, and that this homicide was
judge requests counsel to define their positions
as to the issues involved, and both counsel for murder, seems not to have been an open the state and for the accused reply that the question. The accused was present at the only issue is the question as to whether the scene of the killing. It is true that there
accused is guilty of murder or not guilty of any
offense, and that voluntary manslaughter is not was a large number present. It does not
involved, if the court submits the issue to the appear that the accused was among stran. jury as thus stated, the accused cannot, after gers. It is manifest, from the terms of the conviction of murder, founded upon sufficient
evidence, complain that the court erred in failshowing, that he knew a number of those
ing to charge the law of voluntary manslaughter. present, if not all of them. He furnished
[Ed. Note:--For cases in point, see Cent. Dig. to his counsel the names of a number of vol. 15, Criminal Law, $$ 3007–3010.) those who were present, and subpoenas were 2. HOMICIDE-TRIAL-INSTRUCTIONS. issued for them, but, notwithstanding this, The extracts from the charge of the court, there does not appear in the showing for a
upon which error is assigned, are not erroneous continuance the name of a single witness
for any reason assigned.
3. WRIT OF ERROR – REVIEW – NEW TRIAL -whose presence at the trial was desired.
NEWLY DISCOVERED EVIDENCE.
The loose and irregular, being, in substance, that newly discovered evidence is not of such char there were a number of persons present, and
acter as would probably produce a different
result; and the uiscretion of the judge, exerthat counsel were not in a position to do the cised in overruling the motion for new trial, will accused justice until they could have an not be interfered with. opportunity to find out who of those present (Syllabus by the Court.) were witnesses to the homicide. In one portion of the showing it
Error from Superior Court, Grady County ; stated that there
T. A. Parker, Judge. was a witness living in another county who
Newton Threlkeld was convicted of murwould testify that the accused did not fire
der, and he brings error. Amirmed. the fatal shot; but the name of this witness was not disclosed to the court. If it had W. M. Hammond and J. W. Walters, for been, the court would probably have exer plaintiff in error. W. E. Thomas, Sol. Gen., cised its discretion and postponed the trial
John C. Hart, Atty. Gen., and S. A. Roddenuntil a later date in the term, in order to berg, for the State. have this witness brought into court. While
appears from the showing that counsel ATKINSON, J. Newton Turelkeld was inwere not in a position to know who were dicted for murder, and convicted. In his the witnesses by whom the accused could motion for new trial complaint is made that establish that the homicide was committed
the court omitted to instruct the jury upon by another, there is nothing in the showing
the law of voluntary manslaughter, although to indicate why it was that the accused him the evidence showed that offense to be inself could not have given to counsel the volved. In his order approving the grounds
58 S.E. 4
of the motion the judge certifies that: “Dur distance; so as to inclose by parallel lines the ing the progress of said case, at the opening quantity conveyed. of the argument, the court requested coun
[Ed. Note.--For cases in point, see Cent. Dig.
vol. 35, Mortgages, 88 125-132.] sel to define their positions as to the issues involved in said case.
2. SAME-PLACE OF SALE. Whereupon counsel
The power of sale in a mortgage authorized for the defendant and also counsel for the a sale "before the courthouse door in the town state stated in open court that the only issue of Isabella, Ga." Subsequently to the execution was the question as to whether the defend
of the mortgage the county site of the county
was removed from the town of Isabella to Syl. ant was guilty of murder or not guilty of
vester. Held, that a sale before the courthouse any offense; that voluntary manslaughter door in Sylvester was a valid execution of the was not involved in the case. The court power. agreed with counsel in this position, and for
(Ed. Note.–For cases in point, see Cent: Dig.
vol. 35, Mortgages, 8 1048.) this reason the law of voluntary manslaughter was not given in charge.” This certifi
3. SAME - FORECLOSURE UNDER POWER OF
SALE-CONVEYANCE TO PURCHASER. cate is conclusive as to what transpired at
A deed by a mortgagee, signed in his own the time. If voluntary manslaughter was name, but purporting to be in the execution of Involved, it was the duty of the court to the power of sale in the mortgage, is a good excharge with respect thereto; but, if the
ecution of the power, when the recitals of the
deed are sufficient to indicate that it was the in. court's omission so to charge was brought tention of the grantor to convey in behalf of about by the conduct of the defendant, it the mortgagor, and not in his own behalf. would not lie in the mouth of the defendant [Ed. Note.-For cases in point, see Cent. Dig. afterwards to complain. The maxim, "Con
vol. 35, Mortgages, 88 1118, 111842.] sensus tollit errorem," applies in criminal
4. SAME-PURCHASE BY MORTGAGEE-VALID
ITY. cases as well as in civil cases. Howard v.
The general rule is that the mortgagee canState, 115 Ga. 244, 41 S. E. 654. See, also, not be a purchaser at his own sale under the Caesar v. State, 127 Ga. 711, 57 S. E. 66; power in the mortgage, but a purchase by him is Steed v. State, 123 Ga. 569, and citations,
not absolutely void, but voidable only at the in
stance of the mortgagor or the owner of the 51 S. E. 627; Coney v. State, 90 Ga. 140,
equity of redemption. A purchaser at an execu15 S. E. 746; Griffin v. State, 113 Ga, 279, tion sale, had subsequently to the sale under the 38 S. E. 814. While a judge is not bound to power, the execution being based on a judgment commit an error simply because he is so
rendered after the execution and record of the
mortgage, will not be allowed to impeach the requested, yet, if an error is committed as
purchase by the mortgagee at his own sale. the result of a request on the part of the ac (Ed. Note.-For cases in point, see Cent. Dig. cused, he cannot thereafter complain. Able vol. 35, Mortgages, $$ 1080–1084.] counsel for the defense no doubt believed 5. USURY EFFECT OF POWER OF SALE IN that it was to the interest of their client MORTGAGE. that the law of voluntary manslaughter
The power of sale in a mortgage is not ren
dered void by reason of the fact that the debt should not be given in charge to the jury, sought to be secured is infected with usury. A and thereupon took the bold position that sale under the power miry be had for the purthe defendant was guilty of murder or of no pose of collecting the principal and lawful in
terest on the debt. offense. By taking that position in respond
[Ed. Note.-For cases in point, see Cent. Dig. ing to the inquiry by the court they waiv
vol. 47, Usury, 88 158-160.] ed whatever right they may have had to a
6. SAME. charge upon the law of voluntary man
No sufficient reason has been shown for reslaughter. After making such a waiver, if versing the judgment complained of. the evidence authorizes a verdict for murder
(Syllabus by the Court.) and the defendant is convicted of that offense, a new trial should not be ordered sim
Error from Superior Court, Worth County ; ply because the court did not instruct the
W. N. Spence, Judge. jury upon the law governing the less of
Action by John G. McPhaul against Claude fense of voluntary manslaughter.
Payton and others. Judgment for plaintiff, We do not deem it necessary to elaborate
and defendants bring error. Affirmed. upon the rulings expressed in the second and John G. McPhaul filed a petition against third headnotes.
Claude Payton, C. E. Hay, and J, D. Bridges, Judgment affirmed. All the Justices con alleging that on July 7, 1904, W. D. Collier ex.
ecuted and delivered to the Bank of Poulan a mortgage to secure a debt of $490.20, due October 15, 1904, upon property described as
follows: "100 acres in the southeast corner PAYTON et al. v. McPHAUL.
of lot No. 307 in the 7th district of Worth (Supreme Court of Georgia. June 14, 1907.) county, Ga.” The mortgage contained the fol1. MORTGAGES-DESCRIPTION-SUFFICIENCY.
lowing provision: “Should this debt not be paid A mortgage which describes the property
at maturity the said Bank of Poulan, Poulan, mortgaged as "100 acres in the southeast corner”, Ga., or their assigns are hereby authorized of a given lot of land, which contains 490 acres to advertise and sell the real property hereby and is in the form of a square, is sufficient as a description. The corner of the lot is to be taken
mortgaged, before the court-house door in the as a base point from which two sides of the town of Isabella, Ga., four weeks' notice of tract of land conveyed shall extend an equal such sale being made by the publication in
a newspaper published in the town of Syl. tion, granted a temporary restraining order, Fester; and the said Bank of Poulan, Poulan, and set the case down for a hearing. At the Ga., or their assigns are hereby authorized hearing the defendants showed as cause and empowered to make purchaser at such against the granting of the injunction a desale fee simple titles to the property sold. murrer and an answer. The demurrer set The proceeds arising from the sale of the up that the allegations of the petition were property to be applied to the payment of the not sufficient to authorize any of the relief debt and the expenses of advertising and prayed for; that it did not appear from the selling the same, and the balance, if any, paid petition that there was any sum due on the orer to the undersigned." Collier failed and mortgage at the time the power of sale was refused to pay the debt at maturity, and the exercised, such sale taking place nearly two Bank of Poulan, after advertising the prop years after the maturity of the debt; that erty for four weeks in a newspaper published it appears from the facts stated in the petiin Sylvester, exposed the property for sale, tion that the legal title to the property is in within the legal hours of sale, before the the defendants; that the deed to the plaintiff murthouse door of Worth county, in the was not in harmony with the power; that city of Sylvester, and the plaintiff became the it appears from the copy of the deed from the purchaser of the property for $1,000. On Bank of Poulan to McPhaul, attached to the September 4, 1906, in pursuance of this sale, petition as an exhibit, that McPhaul is the the Bank of Poulan executed and delivered president of the Bank of Poulan, and that, à deed to the plaintiff conveying the property. therefore, he was acquainted with all of the At the June term, 1904, of the city court facts in reference to the deed, and it was inof Sylvester, Hornie & Co. recovered certain cumbent upon him to show that the debt was common-law judgments against Collier, and unpaid and that there was no usury in it; 01 July 30th executions issued thereon were and that the description of the land in the levied on the property, and on the same date mortgage is so indefinite that no lien was that the sale under the power took place, but created by the execution thereof. In the after that sale, the sheriff exposed the land answer it was a verred that the description described in the mortgage to sale under the in the mortgage was too indefinite, and that executions above referred to. Payton became McPhaul was active manager of the Bank of the purchaser of the same for $83. The sher
Poulan and the largest stockholder, and he iff executed and delivered a deed to Payton & was not authorized to purchase at a sale Hay, who afterwards conveyed a half inter had by the bank, and that the bank had no est to Perry by a quitclaim deed, upon a con authority to sell the property at Sylvester, the sideration of $37.50, and Perry subsequently power only authorizing a sale at Isabella; conveyed his half interest to Bridges upon that McPhaul has not complied with his bid the same consideration. On September 4, and paid the amount thereof; that the debt 1906, McPhaul entered into possession of the which the mortgage was given to secure was property he had purchased at the sale under infected with usury, and the power of sale the power, and po notices in three or in the mortgage was therefore void; that more conspicuous places on the land that he the judgments in favor of Hornic & Co. were was the owner thereof. On September 13th the only valid liens on the property, and the sheriff undertook to put Payton & Hay in the title to the property is therefore in the possession, accompanying Payton to the land; defendants. The answer denied that Me McPhaul being at that time in possession of Phaul was in possession, and set up that the the land. The notices posted by McPhaul defendants were in possession, and that Anwere destroyed by Payton, and notices were glin, who was the tenant of Collier, had atposted by him, claiming the property for him torned to them as landlord. It is admitted self and Hay, and forbidding trespassing that it was the intention of the defendants thereon. As soon as McPhaul learned of to erect a dwelling house upon the land at: these acts, he removed such notices, and re an early date, and that, as soon as the inposted the land in the manner in which he junction is dissolved, it is their desire to bad posted it at the time he took possession. continue to improve the land which is theirs, It is distinctly alleged that he is now in pos. The answer concludes with a prayer that the session. He alleges that he is informed and plaintiff be enjoined from interfering with believes that the defendants intend to re
the right of possession of the defendants enter and continue to interfere with his and their enjoyment of the property, and possession by attempting to rent his land and that the deed to the plaintiff be delivered up place tenants in possession thereof, and other and canceled. The judge, after hearing the acts interfering with his right of possession evidence, passed an order granting the inand enjoyment of the property. The prayer
junction prayed for by the plaintiff, and the of the petition is for an injunction to re defendants excepted. strain the defendants from interfering with Payton & Hay and T. R. Perry, for plainthe right of possession and the use of the
tiffs in error. J. B. Williamson and Polbill property; that the sheriff's deed to Payton
& Foy, for defendant in error, & Hay, as well as the deed from Perry to Bridges, be delivered up and canceled, and COBB, P, J. (after stating the facts). 1. for process. The judge sanctioned the peti- | The court will take judicial notice of the
fact that land lot No. 307, in the Seventh district of Worth county, Ga., contains 490 acres and ls in the form of a square. Huxford v. Sou. Pine Co., 124 Ga. 182 (3), 52 S. E. 439. It is claimed that the description of the property mortgaged is so indefinite that no lien was created by the execution of the mortgage. The description is: “100 acres in the southeast corner of land lot No. 307 in the 7th district of Worth county, Ga.” A deed or mortgage will not be held void for an insufficient description of the property if, by any reasonable construction of the terms of the instrument, the description therein used can be held to inclose or embrace a tract of land. If three sides of a tract are given, and there is nothing to indicate that the line not given is otherwise than a straight line, the description will be completed by supplying a straight line, and thus inclosing a tract; this being presumed to be the intention of the parties. Ray v. Pease, 95 Ga. 153 (1), 22 S. E. 190. Persons do not execute deeds and mortgages except for the purpose of conveying or creating a lien upon the property, and the intention to convey or Create a lien will never be held to have been futile on account of the description of the property, when, by any reasonable construction, the instrument may be upheld. If two sides of a tract of land at right angles to each other are given, and it is clear from the instrument that it was the intention of the parties that the land conveyed should be in the shape of a square, the other two sides will be supplied by construction by drawing lines parallel with those which are given. In Walsh v. Ringer, 2 Ohio, 327, 15 Am. Dec. 555, the deed described the land as “70 acres of land being and lying in the southwest corner of the southwest quarter section of section 14.” In the opinion it was said: “The general position of the land conveyed Is given with sufficient certainty. It is in the southwest corner. According to the rules of decision, both in this state and in Kentu ky, that corner is a base point from which two sides of the land conveyed shall extend an equal distance, so as to include by parallel lines the quantity conveyed. From this point the section lines extend north and east so as to fix the boundary west and south, the east and north boundaries only are to be established by construction, and the rule referred to gives them with sufficient certainty.” See, also, 2 Devlin on Deeds (2d Ed.) $ 1013. The lot out of which the mortgage is to be taken is a square. The property intended to be mortgaged is in the corner of the square, and contains 100 acres. The number of acres intended to be mortgaged cannot be more nearly or accurately doscribed to be in the corner of the lot than by taking the lines of the lot forming the corner referred to, and drawing parallel lines from each of such lines at such a point that the four lines would embrace a square con
taining 100 acres. It can be reasonably inferred that this was the intention of the parties, and this construction will be placed upon the terms used. 2. At the time the mortgage was executed the county site of Worth county was the town of Isabella. At the time that the power of sale was exercised the county site was at the city of Sylvester. The power of sale in a mortgage must be construed like other parts of the contract, so as to effectuate the intention of the parties; and this is true as to the place of sale, as well as in regard to the other stipulations in the power. There are numerous cases dealing with the question as to the validity of sales where, for some reason, the place of sale, as indicated by the strict terms of the power, was not chosen as the place of sale on account of events transpiring between the date of the execution of the instrument and the date that the power was exercised. When the power provides that the sale shall be at the courthouse door, the rebuilding, removal, destruction, or temporary abandonment of the building raises a doubt as to where the sale should be had under the power. The general rule is that, where the door of the courthouse is designated as the place of sale, the building is referred to in its character as an official and public building, and that, therefore, the place of sale is the courthouse at the time of the foreclosure, rather than the place used for that purpose at the time the mortgage is executed. This has been held even where the courthouse was temporarily abandoned, as well as in cases where the building was destroyed or permanently abandoned. The decisions, however, are by no means in harmony. No general rule seems to have been laid down fixing the place of sale when there has been a new location of the courthouse. In some cases the sale at the old situs has been held good, and in others a sale at the door of the new structure has been upheld. 28 Am. & Eng. Enc. of Law (2d Ed.) 804; 2 Jones on Mort. (6th Ed.) $ 1848. In Napton v. Hurt, 70 Mo. 407, the power was to sell at the courthouse in Kansas City, and after the execution of the mortgage the courthouse was, by law, removed to and established in a different place in the same city; and it was held that the sale must be had at the new place, and not at the old. In Williams V. Pouns, 48 Tex. 141, it was held that a trust deed requiring the sale to be made at the courthouse of the county is properly executed by a sale at the courthouse of a newly organized county which includes the land sold. It will be seen, from an examination of these authorities, that the court is in each instance endeavoring to ascertain the intention of the parties and carry it into effect as to the place of sale, and that wherever . there has been a change of the location of the courthouse between the date of the exe