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cution of the mortgage and the date of the tale the sale has been upheld, even though at the new place, if it was fairly conducted, and no injury was shown to have resulted from conducting it at such place. The power in the mortgage under consideration declares that the sale shall be “before the Courthouse door in the town of Isabella, Ga.” The question is whether it was the intention of the parties that the sale should be held at the place for legal sales for Worth County, Or whether it was the intention that the sale should be at the town of Isabella, without reference to whether legal sales were conducted at that place. A sale could never be had in strict compliance with the power; for the reason that at the date of the sale there was no courthouse door in the town of Isabella. It may be that the old building formerly used was still there, but it was no longer the courthouse of the county. It does not appear that the land was situated in the town of Isabella, nor is there anything to indicate whether it was nearer the town of Isabella than to the city of Sylvester. It would be a reasonable construction of the terms of the power that it was the intention of the parties that the sale should be held at the county site, rather than at the place which was no longer the place of holding sales for the county. The use of the word “courthouse” is significant. Isabella can be considered as simply descriptive Of the place where the courthouse was situâted, and not as the place designated for the sale. But the courthouse door is the place. The courthouse door of Worth county was at the date of the sale in Sylvester. We think the power was properly executed by the sale at the courthouse door of Worth County; that is, in the city of Sylvester. 3. The deed made in pursuance of the sale under the power was signed by the Bank of Poulan through its president, vice president, and a director. Objection is made that this Was not a good execution of the power, for the reason that it should have been signed in the name of Collier. It distinctly appears, from the recitals in the deed, that it was the Intention of the grantor to convey the property in behalf of Collier, and not in its own behalf. Under the ruling in Tenant v. Blacker, 27 Ga, 418, this was a good execution of "he power. See also Terry v. Rodahan, 70 Ga. 278, 5 S. E. 38, 11 Am. St. Rep. 420. If there is anything in the cases of Compton W. Cassada, 32 Ga 428, and Moseley v. Ramb0, 108 Ga. 597, 32 S. E. 638, in conflict with the ruling just referred to, what is said therein must yield to the older ruling. While it appears from the headnote in Tenant v. Blacker that the statement therein was the opinion of only Benning, J., an examination of the case shows that the point was di*tly involved and absolutely necessary to be decided.
4. It is said, though, that McPhaul was
the president of the Bank of Poulan and the owner of a large majority of the stock therein, and that the purchase by him at the sale Was really a purchase by the Bank of Poulan. The general rule is that a mortgagee selling under a power of sale cannot buy at his own sale, either directly or indirectly. 28 Am. & Eng. Enc. Law (2d Ed.) 818; 2 Jones on Mortgages (6th Ed.) $ 1876. But a purchase by the mortgagee is not absolutely void. It is merely voidable, and only voidable at the instance of the mortgagor or the owner of the equity of redemption at the time of the sale. Palmer v. Young, 96 Ga. 246, 22 S. E. 928, 51 Am. St. Rep. 136: 28 Am. & Eng. Enc. Law (2d Ed.) S19; 2 Jones on Mortgages (6th Ed.) $ 1876a. Neither a judgment creditor of the mortgagor whose judgment is rendered subsequently to the execution and record of the mortgage, nor a purchaser at the sale under such a judgment subsequently to a sale under the power, is allowed to impeach a purchase by the mortgagee at his own sale. Williams v. Williams, 122 Ga. 178, 50 S. E. 52, 106 Am. St. Rep. 100; Martínez v. Lindsey, 8 South. 7S7, 91 Ala. 334. 5. The Code declares that all titles made as a part of a usurious contract are void. Civ. Code 1895, § 2892. But we know of no law which says that a mortgage shall be invalid when the debt sought to be secured thereby is infected with usury. The debtor may plead the usury and reduce the amount to be recovered in the foreclosure suit, but the lien of the mortgage may be asserted for the principal and lawful interest due on the debt. If the mortgagee is thus allowed to foreclose at law for the principal and lawful interest on the debt, we see no reason why he should not be allowed to exercise the power of sale to this extent. While the case of Moseley v. Rambo, 106 Ga. 597, 32 S. E. 63S, may not be said to be a direct ruling on this question, the reasoning of the court tends to that end. In that case the mortgagor acquiesced in the sale under the power, and it was held that he could not thereafter impeach the sale on the ground of usury. 6. It is said that it does not appear from the allegations of the petition that the debt of Collier was unpaid at the time that the sale under the power was had. It does distinctly appear that the debt was not paid at maturity, and we do not think it is incumbent upon the plaintiff to negative the fact that payment had been made after maturity and before the execution of the power. The evidence was conflicting as to who was in possession of the land. Both plaintiff and defendants claimed to be in possession. The person in actual possession of the land seems to have been Anglin, and both of the parties claim him as a tenant. There was evidence that Anglin had attorned to each. The plaintiff was proceeding against him as a tenant by distress warrant to collect rent. Anglin had given a note to the defendants for rent. The judge resolved this issue of fact by holding that the plaintiff was in possession, and we will not disturb his finding on that question. If the plaintiff was in possession, he was entitled to the undisturbed possession. The defendants were interfering with him. They had committed an actual trespass. It is alleged in the petition that they were threatening to commit other acts of trespass, and the answer practically admits that, but for the injunction, the defendants would have continued to deal with the land as their own. Such conduct on their part would amount to a trespass if the plaintiff was the holder of the legal title and in possession. We do not think that the judge abused his discretion in granting a temporary injunction until these issues of fact could be decided by a jury.
Judgment affirmed. All the Justices concur.
GEORGIA RY. & ELECTRIC CO. v. HAMER. (No. 279.)
(Court of Appeals of Georgia. April 25, 1907.)
1. JUDGMENT—SETTING ASIDE—VERDICT. Until the end of the term at which rendered, judgments are “in the breast of the court,” and may be set aside or modified at the judge's discretion; but to set aside a final judgment based on a verdict, except for defects appearing on the face of the record, the verdict must also be set aside, and the verdict is not “within the breast of the court” in the sense that the judgment is. Ayer v. James, 48 S. E. 154, 120 Ga. 580; Jordan v. Tarver, 17 S. E. 351, 92 Ga. 379; Clark's Cove Guano Co. v. Steed, 17 S. E. 967, 92 Ga. 440; Regopoulas v. State, 42 S. E. 1014, 116 Ga. 596; Tietjen v. Merchants' Bank, 43 S. E. 730, 117 Ga. 502.
Rosser & Brandon and Walter T. Colquitt. for plaintiff in error. Sidney C. Tapp, for defendant in error.
POWELL, J. Judgment reversed.
HUNTER v. LISSNER. (No. 1.)
(Court of Appeals of Georgia. Jan. 11, 1907. Rehearing Denied Jan. 24, 1907.)
1. PLEADING—MATTERs of Evide NCE–COPIES of BANKRUPTCY PROCEEDINGS-NECESSITYJUDICIAL NOTICE. To a suit on a promissory note in a justice's court the defendant filed under oath the following plea: “That on the 22d day of October, 1903, defendant filed his voluntary petition in bankruptcy in the District Court of the United States for the Southern District of Georgia, and was duly adjudged a bankrupt by said court, and now has application for discharge pending before said court; that the indebted. ness sued upon was contracted and became due before the filing of said petition and said adjudi. cation in bankruptcy; that the plaintiff was duly scheduled in said petition in bankruptcy as one of the unsecured creditors of said bankrupt, was given notice and had actual knowl. edge of said proceedings in bankruptcy, and ap: peared before the court having jurisdiction of said matter and filed proofs of claim; that said adjudication in bankruptcy and said dis. charge, when granted unto defendant, will release defendant from all liability upon the indebtedness sued upon in this case. Wherefore defendant prays that said suit be suspended and stayed until after said adjudication or the dis. missal of defendant's said petition in bankrupt. cy, and until the question oft". final discharge is determined, and that, upon the granting of such discharge, judgment in his favor be rendered in the case.” This plea was stricken by the court, upon the ground that it did not have attached thereto certified copies of the bankruptcy proceedings referred to. Held, that this judgment was error: (a) Because this plea was in the exact language of section 11 of the bankrupt act of 1898. Act July 1, 1898, 30 Stat. 549, c. 541 [U. S. Comp. St. 1901, p. 3426]. (b) Because it was not necessary to attach to said plea “ter; tified copies of bankruptcy proceeding” relied upon for a stay of said suit. This was a matter of proof and not pleading. (e) The state court in which the application for stay was properly made could not know or take judicial notice Q the proceedings in bankruptcy, but the plea in this case brought before it in an appropriate manner such proceedings, and the defendant should have been given an opportunity to prove this plea ; and upon such proof it is the duty of the court to stay the suit “to await the determination of the court in bankruptcy on the ques: tion of discharge,” unless there is unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge.
[Ed. Note—For cases in point, see Cent. Dig. vol. 20, Evidence, § 65.]
2. JUSTICEs of THE PEACE—CERTIoRARI-VER: IFICATION.—SUFFICIENCY. The answer of the magistrate to the writ of certiorari was as follows: “The facts set forth in the defendant's petition for certiorari aro substantially true and correct, in so far as Como under the knowledge of respondent." Held a suicient verification of the allegations of the petition for certiorari. [Ed. Note—For cases in point, so Cent. Dig. vol. 31, justices of the Peace, $ 782.]
(syllabus by the Court.)
HILL, C. J. J. J. Lissner sued R. E. Hunter’on a promissory note for $50, in the justice's court for the 26th district, G. M. The defendant at the first term filed a plea under oath, asking that the suit be suspended and stayed, because of bankruptcy proceedings then pending against him, until his application for a discharge in bankruptcy, then pending in the United States District Court for the Southern District of Georgia, should be passed upon and determined. This plea is fully set out in the first headnote. Counsel for plaintiff moved to strike this plea, on the ground that it did not have attached thereto certified copies of the proceedings in the bankruptcy court referred to in said plea. The court sustained this motion, dismissed the plea, and entered up judgment against the defendant. This judgment of the justice's court was carried by certiorari to the superior court, and, upon a hearing of the some the superior court dismissed the petition. This judgment is assigned as error.
1. The judgment of the justice's court, striking and dismissing the plea, was error. It the plea was defective, because certified opies of the bankruptcy proceedings were "t attached, it could have been amended on special demurrer thereto. But we do not think it was necessary to have certified cop* of the bankruptcy proceedings attached to or made a part of the plea. The plea set out fully section 11 of the bankrupt act of 188 (Act July 1, 1898, 30 Stat. 549, c. 541 U. S. Comp. St. 1901, p. 3426]), and was sufficient and appropriate pleading to put the state court on notice of the pendency of bankruptcy proceedings and to permit proof of the averments of the plea. This proof Would be the bankruptcy proceedings referTed to in the plea, properly authenticated. Bankr. Act 1898, ; 21, subsec. “d.” The pro. duction of a certified copy of the petition in bankruptcy or of the adjudication will be enough to establish the fact that such bankruptcy proceedings are pending; and, while the state court must be informed by proper pleading of the facts, we know of no law requiring that proof of the facts must be made a part of such pleading. United States District Judge Shiras in the well-considered case of In re Geister (D. C.) 97 Fed. 322, states the following rule as applicable to section 11 of the act of 1898, and points out the course to be pursued in cases like that now under
consideration. “The bankrupt who is the
after the adjudication, the bankrupt makes an application for discharge, the suit shall be stayed until the question of such discharge is determined; and the allegation in this case is that an application for discharge was pending when the request to stay the suit was made to the justice's court. The object of the bankrupt law is to have an exclusive administration of a bankrupt's estate fairly
and equally between all unsecured creditors. ::::: ot: It does not permit the harassment of bank- rol: * * Tupts, by suits for the collection of simple HILL, C. J. The Waxelbaum Company too."
debts from which a discharge would be a release, until reasonable time has been given for the determination of the question of discharge. Especially is this true when the creditor has gone into the bankrupt court and proved his debt. In proper cases it allows suits for the purpose of liquidation. 2. Attack is made in this court on the Versfication by the magistrate of the allegations in the petition for certiorari. This verification is in the following language: “The facts set forth in the defendant's petition for certiorari are substantially true and correct, in so far as came within the knowledge of respondent.” The criticism made is that it verifies the facts only “in so far as they came within the knowledge of respondent.” We are not able to see how he could be expected
Error from City Court of Sylvester; Park, Judge.
Action by the Waxelbaum Company against W. A. Johnson and the Pate-Smith Company. Judgment for plaintiff, and defendants bring error. Affirmed.
Payton & Hay, for plaintiffs in error. Hardeman & Jones and Polhill & Foy, for defendant in error.
brought suit on a note in the city court of Sylvester against the Pate-Smith Company and W. A. Johnson as makers. The defendants filed pleas and answers substantially as follows: (1) That the Pate-Smith Company, on August 16, 1904, had been adjudged a bankrupt; that the plaintiff had proved its claim in the bankruptcy case in the bankrupt court at Thomasville, Ga.; that the trustee had in hand $2,700 to be distributed to creditors; that the Pate-Smith Company had not been discharged, and that this suit should therefore abate, to await the action of the bankrupt court, to ascertain what amount, if any, the Pate-Smith Company is indebted over and above the amount realized from the assets of the said defunct company; and that the plaintiff should be remanded to its
to verify facts that did not come within his rights in the bankruptcy court. (2) That the
knowledge. In our opinion, the verification | note sued on was never made by the Pate
is sufficient; and, if the judge below dismiss- Smith Company, because it was not signed * * *
ed the certiorari on the ground that it was by the president of the company, but appears o -**sūto
not sufficient, this was error. Judgment reversed.
1. Fourter-Action AGAINST BANKRUPT —STAY. A plea to a suit in the state court, setting up the pendency of bankruptcy proceedings and ... asking for a stay of the suit, must show that the debt sued on is one from which a discharge would be a release, and that application for a discharge had been made, or that the time for such application had not elapsed. 2. SAME. The suit in the state court will not be stayed on the application of a co-debtor with the defendant, against whom no bankruptcy proceedings are pending. 3. CORPORATIONS-AUTHORITY OF OFFICERS. Where a corporation holds out a person as its officer, it is bound by acts apparently within the scope of his authority, notwithstanding a by-law or other limitation upon the power of the officer, not known to a party dealing with him as such officer. 4. PLEADING — DECLARATION – OBJECTIONSWAIVER—BILLS AND NoTEs—Joi NT MAKER— SURETY. One who writes his name upon the back of an otherwise complete note, merely for the purpose of guaranteeing the payment, is apparently a surety only, and not liable as an indorser. Where he is sued on the note as joint maker, and makes no objection by demurrer or plea to the form of the suit, he is bound by the judgment. (Syllabus by the Court.)
to have been made, and the stamp thereto attached of the name of Pate-Smith Company and signed, by W. B. Williams as secretary, while the charter and by-laws of the company required notes to be signed in the name of the Pate-Smith Company by the president of the company, and countersigned by the secretary and treasurer. The defendants deny that the Pate-Smith Company, or any one else properly authorized by it, did make and execute the note sued on. The plaintiff demurred to these pleas and answers, and the court struck them, directed a verdict, and entered judgment against both of the defendants. To the order of the court striking the pleas and answers, both of the defendants excepted; and to the judgment against the defendants jointly the defendant Johnson excepted, because, under the plaintiff's pleadings, the verdict should have been against the Pate-Smith Company as maker and W. A. Johnson as indorser only. 1. The plea setting up the pendency of bankruptcy proceedings against the PateSmith Company was properly stricken. It did not come up to the requirements of such a plea (Bankr. Act July 1, 1898, § 11, c. 541, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3426]). It did not allege that the Pate-Smith Company had applied for a discharge, or intended to apply for a discharge, or was entitled to a discharge, or that the debt sued on was one from which a discharge would be a release. Hunter v. Lissner, 1 Ga. App. 1, 58
S. E. 54. What we have said above applies to the plea of bankruptcy proceedings made by the defendant the Pate-Smith Company. The other defendant, W. A. Johnson, whether as indorser, surety, or joint maker, could not plead in discharge of his liability on the note the bankruptcy of the maker. Section 15 of the bankrupt act provides: “The liability of a person who is a co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt.” 2. The plea of non est factum was propetly not allowed as a defense against the note in question. This note was signed in the corporate name by the secretary and treasurer, and was indorsed by the person who was president of the corporation. (See affidavit of W. A. Johnson to the plea.) We do not think the by-law requiring notes of this company to be signed by the president and Countersigned by the secretary and tressurer would be binding upon third perSOWs who had no knowledge of such requirements. We do not think that an officer of # Corporation would be permitted to make a Corporate contract, and then, without denying (as in the case of the execution of a Lote that it was for a valid consideration teceived and enjoyed by the corporation, be allowed to defend a suit on the note because of a by-law limitation unknown to the party dealing with the corporation. 10 Cyc. 942. "Every corporation acts through its officers, and is responsible for the acts of such offiters in the sphere of their appropriate duty; and no corporation can be relieved of its liability to third persons for the acts of its "iters by reason of any by-law or other limilation upon the power of the officer, not known to such third person.” Civ. Code lo, 1861. Where a corporation holds out allother as its officer, it is bound by acts Within the apparent scope of his authority, Hotwithstanding by-laws limiting such autivity, unknown to a person dealing with in as such officer. Raleigh R. Co. v. PullIllum Co., 122 Ga. 705, 50 S. E. 1008. The * in this case did not allege that the Waxthaum Company had any knowledge or noto of the by-law in question. 3. The defendant Johnson was sued as "it maker, and he did not, either by demur* or plea, make any objection to the form Mile Suit, or allege that he was other than Mut maker. He cannot now be heard to *t on the ground that the suit did not de*the him as indorser, and that a judgment "is not entered up against him as such. As * Illutter of fact he seems not to have been on indorser, but was either a joint maker or **urety. The fact that he wrote his name *s the back of the note did not necessarmake him an indorser. Ridley v. High"Wer, 112 Ga. 476, 37 s. E. 733. The judgment of the court in striking the * and answers, and in directing a ver* for the plaintiff is affirmed.
FERGUSON v. STATE. (No. 390.) (Court of Appeals of Georgia. May 16, 1907.)
1. CRIMINAL LAw-SUFFICIENCY OF EVIDENCE. To authorize a conviction of crime, the state must prove every material allegation necessary to constitute the offense charged; and, when a given act may be done under certain circuinstances without guilt (unless the statute contains provisos and exceptions in distinct clauses), the proof for the state must take such act out of the exceptions provided by the statute.
2. WEAPONs—S Hooti NG ON HIGHWAY. To sustain a conviction for a violation of Pen. Code 1895, § 508, it must not only be shown that the accused shot a gun or pistol between dark and daylight, as charged, and that such shooting was not in defense of person or property, but it is further incumbent on the state (unless the proof shows that such firing was done on a public highway) to prove that such shooting or firing within 50 yards of the public highway was not on the defendant's land. 3. SAME-Ev IDENCE. The evidence sustains the verdict, and there was no error in refusing a new trial. 4. CRIMINAL LAw—NEw TRIAL. The newly discovered evidence presented * not require a different result on another trial. [Ed. Note—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2336.]
This court gathers the facts of the case from the brief of evidence as approved by the trial judge.
(Syllabus by the Court.)
Error from City Court of Americus; Crisp, Judge.
One Ferguson was convicted of shooting on the highway, and brings error. Affirmed.
Blalock & Cobb, for plaintiff in error. Zach. Childers, Sol., for the State.
RUSSELL, J. In the city court of Americus the defendant was convicted of the of.fense of shooting on a public highway. His motion for a new trial was overruled, and he excepts to that judgment. The motion is upon the statutory grounds and also upon the extraordinary ground of newly discoyered evidence.
The plaintiff in error contends that it is necessary for the state to prove all of the ma. terial allegations before the jury would be authorized to convict, and insists that the state failed in this case to establish his guilt, because, under Pen. Code 1895, $ 508, guilt is not established by proving alone that the defendant shot on a public highway between dark and daylight, but it is also incumbent upon the state to prove to the jury beyond a reasonable doubt that the shooting was done willfully and wantonly, and not in self-defense, nor on the premises of the de
fendant. We Willingly agree that the con
tention of plaintiff in error is sound, and it is sustained by authority. In construing the section now under consideration the Supreme Court has expressly held that as it is not an offense to shoot on or near a public highway, when it is done in defense of per