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a newspaper published in the town of Sylvester; and the said Bank of Poulan, Poulan, Ga., or their assigns are hereby authorized and empowered to make purchaser at such sale fee simple titles to the property sold. The proceeds arising from the sale of the property to be applied to the payment of the debt and the expenses of advertising and selling the same, and the balance, if any, paid over to the undersigned." Collier failed and refused to pay the debt at maturity, and the Bank of Poulan, after advertising the property for four weeks in a newspaper published in Sylvester, exposed the property for sale, within the legal hours of sale, before the courthouse door of Worth county, in the city of Sylvester, and the plaintiff became the purchaser of the property for $1,000. On September 4, 1906, in pursuance of this sale, the Bank of Poulan executed and delivered a deed to the plaintiff conveying the property. At the June term, 1904, of the city court of Sylvester, Hornic & Co. recovered certain common-law judgments against Collier, and on July 30th executions issued thereon were levied on the property, and on the same date that the sale under the power took place, but after that sale, the sheriff exposed the land described in the mortgage to sale under the executions above referred to. Payton became the purchaser of the same for $83. The sheriff executed and delivered a deed to Payton & Hay, who afterwards conveyed a half interest to Perry by a quitclaim deed, upon a consideration of $37.50, and Perry subsequently conveyed his half interest to Bridges upon the same consideration. On September 4, 1906, McPhaul entered into possession of the property he had purchased at the sale under the power, and posted notices in three or more conspicuous places on the land that he was the owner thereof. On September 13th the sheriff undertook to put Payton & Hay in possession, accompanying Payton to the land; McPhaul being at that time in possession of the land. The notices posted by McPhaul were destroyed by Payton, and notices were posted by him, claiming the property for himself and Hay, and forbidding trespassing thereon. As soon as McPhaul learned of these acts, he removed such notices, and reposted the land in the manner in which he had posted it at the time he took possession. It is distinctly alleged that he is now in possession. He alleges that he is informed and believes that the defendants intend to reenter and continue to interfere with his possession by attempting to rent his land and place tenants in possession thereof, and other acts interfering with his right of possession and enjoyment of the property. The prayer of the petition is for an injunction to restrain the defendants from interfering with the right of possession and the use of the property; that the sheriff's deed to Payton & Hay, as well as the deed from Perry to Bridges, be delivered up and canceled, and for process. The judge sanctioned the peti

tion, granted a temporary restraining order, and set the case down for a hearing. At the hearing the defendants showed as cause against the granting of the injunction a demurrer and an answer. The demurrer set up that the allegations of the petition were not sufficient to authorize any of the relief prayed for; that it did not appear from the petition that there was any sum due on the mortgage at the time the power of sale was exercised, such sale taking place nearly two years after the maturity of the debt; that it appears from the facts stated in the petition that the legal title to the property is in the defendants; that the deed to the plaintiff was not in harmony with the power; that it appears from the copy of the deed from the Bank of Poulan to McPhaul, attached to the petition as an exhibit, that McPhaul is the president of the Bank of Poulan, and that, therefore, he was acquainted with all of the facts in reference to the deed, and it was incumbent upon him to show that the debt was unpaid and that there was no usury in it; and that the description of the land in the mortgage is so indefinite that no lien was created by the execution thereof. In the answer it was averred that the description in the mortgage was too indefinite, and that McPhaul was active manager of the Bank of Poulan and the largest stockholder, and he was not authorized to purchase at a sale had by the bank, and that the bank had no authority to sell the property at Sylvester, the power only authorizing a sale at Isabella; that McPhaul has not complied with his bid and paid the amount thereof; that the debt which the mortgage was given to secure was infected with usury, and the power of sale in the mortgage was therefore void; that the judgments in favor of Hornic & Co. were the only valid liens on the property, and the title to the property is therefore in the defendants. The answer denied that Mc Phaul was in possession, and set up that the defendants were in possession, and that Anglin, who was the tenant of Collier, had attorned to them as landlord. It is admitted that it was the intention of the defendants to erect a dwelling house upon the land at an early date, and that, as soon as the injunction is dissolved, it is their desire to continue to improve the land which is theirs. The answer concludes with a prayer that the plaintiff be enjoined from interfering with the right of possession of the defendants and their enjoyment of the property, and that the deed to the plaintiff be delivered up and canceled. The judge, after hearing the evidence, passed an order granting the injunction prayed for by the plaintiff, and the defendants excepted.

Payton & Hay and T. R. Perry, for plaintiffs in error. J. B. Williamson and Polhill & Foy, for defendant in error.

COBB, P. J. (after stating the facts). 1. 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 is 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 Kenturky, 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 described 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. 497, 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 exe cuted 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

cution of the mortgage and the date of the sale 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 situated, 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 the power. See also Terry v. Rodahan, 79 Ga. 278, 5 S. E. 38, 11 Am. St. Rep. 420. If there is anything in the cases of Compton v. Cassada, 32 Ga 428, and Moseley v. Rambo, 106 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 directly 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.) 819; 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; Martinez v. Lindsey, 8 South. 787, 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. 638, 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 con

cur.

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.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, § 667.]

2. TRIAL-SETTING ASIDE VERDICT.

Any motion to set aside a verdict, based on matters not appearing on the face of the record, is in effect a motion for a new trial, and is subject to all the rules of law governing such motions. Lucas v. Lucas, 30 Ga. 191, 206, 76 Am. Dec. 642; Prescott v. Bennett, 50 Ga. 272; Hyfield v. Sims, 13 S. E. 554, 87 Ga. 282; Me Crary v. Gano, 41 S. E. 580, 115 Ga. 296.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 273, 275.]

3. NEW TRIAL-BRIEF OF EVIDENCE.

A brief of the evidence is an indispensable statutory requisite to a valid motion for a new trial. This is true, even though the verdict be directed by the court, and even though the motion be based on grounds which do not require a consideration of the evidence. Moxley v. Georgia Ry. & Elec. Co., 50 S. E. 339, 122 Ga. 493; Mize v. Americus Mfg. & Imp. Co., 32 S. E. 22, 106 Ga. 140; Baker v. Johnson, 27 S. E. 706, 99 Ga. 374.

(Syllabus by the Court.)

Error from City Court of Atlanta; Reid, Judge.

Action between the Georgia Railway & Electric Company and one Hamer. From a judgment, the company brings error. Reversed.

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 EVIDENCE-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 indebtedness sued upon was contracted and became due before the filing of said petition and said adjudication 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 knowledge of said proceedings in bankruptcy, and appeared before the court having jurisdiction of said matter and filed proofs of claim; that said adjudication in bankruptcy and said discharge, when granted unto defendant, will release defendant from all liability upon the inWherefore debtedness sued upon in this case. defendant prays that said suit be suspended and stayed until after said adjudication or the dismissal of defendant's said petition in bankruptcy, and until the question of his final discharge is determined, and that, upon the granting of such discharge, judgment in his favor be rendered in 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 "certified 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 of 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 question of discharge," unless there is unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge.

the case.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 65.]

2. JUSTICES OF THE PEACE-CERTIORARI-VERIFICATION-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 are substantially true and correct, in so far as came under the knowledge of respondent." Held a sufficient verification of the allegations of the petition for certiorari.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 782.] (Syllabus by the Court.)

Error from Superior Court, Glynn County; Parker, Judge.

Action in justice's court by J. J. Lissner against R. E. Hunter on a promissory note, carried by certiorari to the superior court to review a judgment for plaintiff. From a judgment of the superior court dismissing the petition for certiorari, defendant brings error. Reversed.

A. D. Gale and Brantley & Butts, for plaintiff in error. Max Isaac, for defendant in error.

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 same, 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. If the plea was defective, because certified copies of the bankruptcy proceedings were not attached, it could have been amended on special demurrer thereto. But we do not think it was necessary to have certified coples 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 1898 (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 referred to in the plea, properly authenticated. Bankr. Act 1898, § 21, subsec. "d." The production 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 defendant in the state court should file in court a proper pleading setting forth the pendency of the proceedings in bankruptcy, and, based thereon, should ask a stay as provided for in section 11; and, upon being thus informed of the pendency of the proceedings in bankruptcy, it will be the duty of the state court to grant the stay prayed for." In. Boynton v. Ball, 121 U. S. 457, 7 Sup. Ct. 981, 30 L. Ed. 985, it is said: "The state court could not know or take judicial notice of the proceedings in bankruptcy, unless they were brought before it in some appropriate manner. The state court does not thereupon lose jurisdiction of the case; but the proceedings may, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy on the question of his discharge." The same rule is laid down by the Supreme Court of Georgia in Rutherford v. Rountree, 68 Ga. 722; Howell v. Glover, 65 Ga. 466; Cohen v. Duncan, 64 Ga. 341; Steadman v. Lee, 61 Ga. 58.

The plea being sufficient to authorize the proof of the facts therein set forth, the state court should have sustained the plea, and, upon the proof of such facts, the law required that the suit be stayed to await the determination of the court in bankruptcy on the question of the discharge. If the bankrupt is discharged, the certificate of the discharge would be a bar to any further prosecution of the suit. If the application for discharge is denied, the stay is at an end, and the suit proceeds to judgment. The suit in the state court being for the collection of a debt from which a discharge would be a release, there can be no doubt that the law required that the stay asked for should have been granted until the determination of the application for discharge. Bankr. Act, § 11; In re Geister (D. C.) 97 Fed. 322; Hill v. Harding, 107 U. S. 631, 2 Sup. Ct. 404, 27 L. Ed. 493; Collier on Bankruptcy (4th Ed.) 121, 123, 127. This result follows whether the suit in the state court was brought before, or after, the filing of bankruptcy proceedings. Collier on Bankruptcy, 131; In re Basch (D. C.) 3 Am. Bankr. Rep. 237, 97 Fed. 761.

It is insisted that the judgment of the justice's court striking the plea and dismissing the motion to stay was right, because at the time of the motion more than 12 months had elapsed since the adjudication. It does not appear when the adjudication was made, and we cannot assume that it was as of the date of the filing of the petition in bankruptcy or immediately thereafter. This limitation of the continuance of the stay of suits "until twelve months after the date of such adjudication" applies to suits "pending against the person" of the bankrupt before or when the petition in bankruptcy is filed and the adjudication had. It cannot reasonably apply to suits brought against the bankrupt after the petition and adjudication. Besides, the act provides that if, within the 12 months

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