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cution of the mortgage and the date of the
3. The deed made in pursuance of the sale
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.) 8 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 mort. gagee at his own sale. Williams v. Williams, 122 Ga. 178, 50 S. E. 52, 106 Am. St. Rep. 100; Martinez v. Lindsey, 8 South. 757, 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 tlie 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 Anglip had attorned to each. The plain. tiff was proceeding against him as a tenant by distress warrant to collect rent. Anglin bad given a note to the defendants for rent.
The judge resolved this issue of fact by hold Rosser & Brandon and Walter T. Colquitt, ing that the plaintiff was in possession, and for plaintiff in error. Sidney C. Tapp, for we will not disturb his finding on that ques defendant in error. tion. If the plaintiff was in possession, he was entitled to the undisturbed possession.
POWELL, J. Judgment reversed. 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 HUNTER V. LISSNER. (No. 1.) for the injunction, the defendants would
(Court of Appeals of Georgia. Jan. 11, 1907. have continued to deal with the land as their
Rehearing Denied Jan. 24, 1907.) own. Such conduct on their part would
1. PLEADING-MATTERS OF EVIDENCE-COPIES amount to a trespass if the plaintiff was the
OF BANKRUPTCY PROCEEDINGS-NECESSITYholder of the legal title and in possession. JUDICIAL NOTICE. We do not think that the judge abused his To a suit on a promissory note in a justice's discretion in granting a temporary injunc. ) ing plea: "That on the 220 day of October,
court the defendant filed under oath the followtion until these issues of fact could be decid 1903, defendant filed his voluntary petition in ed by a jury.
bankruptcy in the District Court of the United Judgment affirmed. All the Justices con
States for the Southern District of Georgia,
and was duly adjudged a bankrupt by said cur.
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. GEORGIA RY. & ELECTRIC CO. V.
cation in bankruptcy; that the plaintiff was
duly scheduled in said petition in bankruptcy as HAMER. (No. 279.)
one of the unsecured creditors of said bank(Court of Appeals of Georgia. April 25, 1907.)
rupt, was given notice and had actual knowl
edge of said proceedings in bankruptcy, and ap. 1. JUDGMENT-SETTING ASIDE-VERDICT.
peared before the court having jurisdiction of Until the end of the term at which render
said matter and filed proofs of claim; that ed, judgments are “in the breast of the court,"
said adjudication in bankruptcy and said disand may be set aside or modified at the judge's charge, when granted unto defendant, will rediscretion; but to set aside a final judgment
lease defendant from all liability upon the in. based on a verdict, except for defects appearing
debtedness sued upon in this case. Wherefore on the face of the record, the verdict must also
defendant prays that said suit be suspended and be set aside, and the verdict is not “within the stayed until after said adjudication or the disbreast of the court" in the sense that the judg.
missal of defendant's said petition in bankruptment is. Ayer v. James, 48 S. E. 154, 120 Ga. cy, and until the question of his final discharge is 580; Jordan v. Tarver, 17 S. E. 351, 92 Ga.
determined, and that, upon the granting of such 379; Clark's Cove Guano Co. v. Steed, 17 S. E. discharge, judgment in his favor be rendered in 967, 92 Ga. 440; Regopoulas v. State, 42 S. E.
the case. This plea was stricken by the court, 1014, 116 Ga. 596; Tietjen v. Merchants' Bank, upon the ground that it did not have attached 43 S. E. 730, 117 Ga. 502.
thereto certified copies of the bankruptcy pro[Ed. Note.-For cases in point, see Cent. Dig.
ceedings referred to. Hdd, that this judgment vol. 30, Judgment, 8 667.)
(a) Because this plea was in the
exact language of section 11 of the bankrupt act 2. TRIAL-SETTING ASIDE VERDICT.
of 1898. Act July 1, 1898, 30 Stat. 519, c. 541 Any motion to set aside a verdict, based on
[U. S. Comp. St. 1901, p. 3426]. (b) Because matters not appearing on the face of the rec it was not necessary to attach to said plea "cerord, is in effect a motion for a new trial, and is
tified copies of bankruptcy proceeding" relied subject to all the rules of law governing such
upon for a stay of said suit. This was a matter motions. Lucas v. Lucas, 30 Ga. 191, 206, 76
of proof and not pleading. (e) The state court Am. Dec. 612; Prescott v. Bennett. 50 Ga. 272;
in which the application for stay was properly Hyfield v. Sims, 13 S. E. 554, 87 Ga. 282; Ma
made could not know or take judicial notice of Crary v. Gano, 41 S. E. 580, 115 Ga. 296. the proceedings in bankruptcy, but the plea in
this case brought before it in an appropriate [Ed. Note. For cases in point, see Cent. Dig. manner such proceedings, and the defendant vol. 37, New Trial, $8 273, 275.)
should have been given an opportunity to prove 3. New TRIAL-BRIEF OF EVIDENCE.
this plea; and upon such proof it is the duty of A brief of the evidence is an indispensable
the court to stay the suit to await the determistatutory requisite to a valid motion for a new
nation of the court in bankruptcy on the questrial. This is true, even though the verdict be
tion of discharge," unless there is unreasonable directed by the court, and even though the mo
delay on the part of the bankrupt in endeavor
ing to obtain his discharge. tion be based on grounds which do not require a consideration of the evidence. Moxley v. Geor [Ed. Vote.-For cases in point, see Cent. Dig. gia Ry, & Elec. Co., 50 S. E. 339, 122 Ga. 433 ; vol. 20, Evidence, $ 65.] Mize v. Americus Mfg. & Imp. Co., 32 S. E. 22,
2. JUSTICES OF THE PEACE_CERTIORARI-VER106 Ga. 140; Baker y. Johnson, 27 S. E. 706,
IFICATION-SUFFICIENCY. 99 Ga. 374,
The answer of the magistrate to the writ of (Syllabus by the Court.)
certiorari was as follows: "The facts set forth
in the defendant's petition for certiorari are Error from City Court of Atlanta ; Reid, substantially true and correct, in so far as came
under the knowledge of respondent.” Held a Judge,
sufficient verification of the allegations of the Action between the Georgia Railway &
petition for certiorari. Electric Company and one Hamer. From a
ĮEd. Note.-For cases in point, see Cent. Dig. judgment, the company brings error. Re vol. 31, Justices of the Peace, 8 782.] versed.
(Syllabus by the Court.)
Error from Superior Court, Glynn Coun consideration. "The bankrupt who is the ty; Parker, Judge.
defendant in the state court should file in Action in justice's court by J. J. Lissner court a proper pleading setting forth the pen. against R. E. Hunter on a promissory note, dency of the proceedings in bankruptcy, and, carried by certiorari to the superior court to based thereon, should ask a stay as provided review a judgment for plaintiff. From a for in section 11; and, upon being thus injudgment of the superior court dismissing formed of the pendency of the proceedings in the petition for certiorari, defendant brings bankruptcy, it will be the duty of the state error, Reversed.
court to grant the stay prayed for," In, A. D. Gale and Brantley & Butts, for
Boynton v. Ball, 121 U. S. 457, 7 Sup. Ct. plaintiff in error. Max Isaac, for defendant 981, 30 L. Ed. 983, it is said: “The state in error
court could not know or take judicial notice
of the proceedings in bankruptcy, unless they HILL, C. J. J. J. Lissner sued R. E. Hun
were brought before it in some appropriate ter 'on a promissory note for $50, in the jus
manner. The state court does not thereupon
lose jurisdiction of the case; but the protice's court for the 26th district, G. M. The defendant at the first term filed a plea under
ceedings may, upon the application of the oatb, asking that the suit be suspended and
bankrupt, be stayed to await the determinastayed, because of bankruptcy proceedings
tion of the court in bankruptcy on the questhen pending against him, until his applica
tion of his discharge.” The same rule is laid tion for a discharge in bankruptcy, then
down by the Supreme Court of Georgia in pending in the United States District Court
Rutherford v. Rountree, 68 Ga. 722; Howell for the Southern District of Georgia, should
v. Glover, 65 Ga. 466; Cohen v. Duncan, 64 be passed upon and determined. This plea
Ga. 341; Steadman v. Lee, 61 Ga, 58. is fully set out in the first headnote. Coun
The plea being sufficient to authorize the sel for plaintiff moved to strike this plea, on
proof of the facts therein set forth, the state the ground that it did not have attached
court should have sustained the plea, and, thereto certified copies of the proceedings in
upon the proof of such facts, the law requirthe bankruptcy court referred to said plea.
ed that the suit be stayed to await the deterThe court sustained this motion, dismissed
mination of the court in bankruptcy on the the plea, and entered up judgment against
question of the discharge. If the bankrupt the defendant. This judgment of the jus
is discharged, the certificate of the discharge tice's court was carried by certiorari to the
would be a bar to any further prosecution of superior court, and, upon a hearing of the
the suit. If the application for discharge is same, the superior court dismissed the pe
denied, the stay is at an end, and the suit tition. This judgment is assigned as error.
proceeds to judgment. The suit in the state 1. The judgment of the justice's court,
court being for the collection of a debt from striking and dismissing the plea, was error.
which a discharge would be a release, there If the plea was defective, because certified
can be no doubt that the law required that copies of the bankruptcy proceedings were
the stay asked for should have been granted not attached, it could have been amended on
until the determination of the application for special demurrer thereto. But we do not
discharge. Bankr. Act, $ 11; In re Geister think it was necessary to have certified cop
(D. C.) 97 Fed. 322; Hill v. Harding. 107 ies of the bankruptcy proceedings attached
U. S. 631, 2 Sup. Ct. 404, 27 L. Ed. 493; to or made a part of the plea. The plea set
Collier on Bankruptcy (4th Ed.) 121, 123, out fully section 11 of the bankrupt act of
127. This result follows whether the suit 1898 (Act July 1, 1898, 30 Stat. 549, c. 541
in the state court was brought before, or aft[U. S. Comp. St. 1901, p. 3426]), and was
er, the filing of bankruptcy proceedings. Colsufficient and appropriate pleading to put
lier on Bankruptcy, 131; In re Basch (D. C.) the state court on notice of the pendency of
3 Am, Bankr. Rep. 237, 97 Fed. 761. bankruptcy proceedings and to permit proof
It is insisted that the judgment of the jus. of the averments of the plea. This proof
tice's court striking the plea and dismissing would be the bankruptcy proceedings refer
the motion to stay was right, because at the red to in the plea, properly authenticated.
time of the motion more than 12 months had Bankr. Act 1898, § 21, subsec. “d.” The pro.
elapsed since the adjudication. It does not duction of a certified copy of the petition in
appear wben the adjudication was made, and bankruptcy or of the adjudication will be
we cannot assume that it was as of the date enough to establish the fact that such bank
of the filing of the petition in bankruptcy or ruptcy proceedings are pending; and, while
immediately thereafter. This limitation of the state court must be informed by proper
the continuance of the stay of suits "until pleading of the facts, we know of no law re twelve months after the date of such adjudiquiring that proof of the facts must be made cation" applies to suits "pending against the a part of such pleading. United States Dis person" of the bankrupt before or when the trict Judge Shiras in the well-considered case petition in bankruptcy is filed and the adjudof In re Geister (D. C.) 97 Fed. 322, states
ication had. It cannot reasonably apply the following rule as applicable to section 11 to suits brought against the bankrupt after of the act of 1898, and points out the course the petition and adjudication. Besides, the to be pursued in cases like that now under act provides that if, within the 12 months
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