GA State Supreme Court Records

From "The Southeastern Reporter"

Mentioning Whitfield County GA

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The Southeastern Reporter 1894,

 Vol 21: Page 73: DUCKETT v. STATE. (Supreme Court of Georgia. Dec. 18, 1894.) Criminal Trespass—Accessory In Adjoining State—Liability As Principal.

1. Where one hires another, in the state of Tennessee, to commit a trespass in Georgia, and the person hired does commit the trespass, and in so doing acts in a manner reasonably to be anticipated by the person who employed him, and thereby commits a misdemeanor, both are principals in the misdemeanor, and subject to indictment and punishment in Georgia. Thus, a constable in Tennessee, wishing to levy upon a horse which was in Georgia, hired a person to bring the horse into Tennessee, without specifying now it was to be brought, and the person employed rode the horse in Georgia, without the consent of the owner, and by this means executed his commission. Held that the constable, as well as his agent, was guilty of a misdemeanor, under the statute making it penal to willfully ride or drive the horse of another without the consent of the owner.

2. There was no substantial error in the charge of the court, and the evidence warranted the verdict.

(Syllabus by the Court.)Error from superior court, Whitfield County; T. W. Milner, Judge.Enoch Duckett was convicted of riding and driving a horse belonging to another, without her consent, and brings error. Affirmed.Following is the official report:Howard Tilley and Enoch Duckett were indicted for riding and driving a horse belonging to Mrs. Foster, without her consent, on August 1, 1892, in Whitfield County, Ga. Duckett was found guilty, and his motion for a new trial was overruled. The motion contained the grounds that the verdict was contrary to law and evidence, and to the following in the charge to the jury: "lf you believe from the evidence that the defendant contracted with and procured one Howard Tilley to ride or drive the horse of the person mentioned in the bill of indictment, and the said Tilley, in pursuance of the contract, came into this state and county, and rode or drove the horse of the person mentioned in the bill of indictment, without the consent of such owner, the defendant would be guilty, and it would be your duty to convict him." Also, that the following charge was error, for want of evidence on which to base it: "lf you believe from the evidence that the defendant procured Tilley to ride the horse described in the bill of indictment, and he, said Tilley, did, in pursuance of a contract or agreement with the defendant, ride or drive the horse in Whitfield county, it would be your duty to find the defendant guilty." The testimony of Mrs. Foster was that she missed her horse on August 31, 1892, and the next day received a letter, addressed to her husband, from defendant Duckett, signing as constable, stating: "l this morning levied an execution on your horse, in favor of a bill of cost obtained against you on February 5th, 1891, before W. L. Atchley, J. P., on a peace warrant . You can get your horse by making good Tennessee delivery bond." This letter was headed, "Cleo, Tennessee, September 1st, 1892." On the receipt thereof, Mrs. Foster went up, filed her papers, and got the horse, which was her property. lt was taken without her consent. She and her husband lived together. He sometimes drove this horse, but only when she consented for him to do so. He had no horse, but sometimes used this one. Howard Tilley and one Parker testified that in the latter part of August, 1892, defendant came to Parker's sawmill, in Bradley county, Tenn., where, in a conversation, he stated that he had an execution against old man Foster, and further said, "l would give $2.50 if l had his horse across the line, so l could levy on it." To this Tilley replied, "l will do it for that," and defendant said, "lf you do me any good, you will have to do it by Saturday, as my time is out then." This is all that was said. Tilley further testified that he went in the afternoon, and got the horse from the stable, and carried him into Tennessee, and let him stay until after night, and then afterwards carried him to another point in Tennessee, about a mile from where defendant lived. Defendant never paid him anything for getting the horse, and he never asked him for pay. He notified defendant where the horse was, and supposed he got it . Tilley rode the horse in Georgia about 100 yards. Did not tell defendant's counsel that he did not ride the horse in Georgia, but told him he did not think he rode him. He did not like old man Foster, and got the horse as much to get even with him as to get pay, but expected afterwards to get pay. Defendant did not tell him to get Mrs. Foster's horse. He talked about the old man's horse. Tilley got the horse he told him to get. Did not know it belonged to Mrs. Foster. Parker testified that he was present, and heard Tilley tell defendant's counsel that he did not ride the horse in Georgia.

Maddox & Starr, for plaintiff in error. A. W. Fite, Sol. Gen., for the State.

PER CURlAM. Judgment affirmed.                                                                                                            

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The Southeastern Reporter: Vol 21, 1894, Page 983:

O'BRYAN et al. v. HARDWlCK et al. (Supreme Court of Georgia. July 30, 1894.) Injunction—To Restrain Execution Sale.

There was no abuse of discretion in the judgment revoking the restraining order and denying the injunction prayed for. (Syllabus by the Court.) Error from superior court, Whitfield county; T. W. Milner, Judge. Petition by O'Bryan Bros, and others against C. L. Hardwick & Co. and others for an injunction and other relief. An injunction was denied, and petitioners bring error. Affirm ed.

The following is the official report: O'Bryan Bros., Manier & Co., and Ross & Co., by their petition, alleged: J. L. Ledford owes O'Bryan Bros. $612.31 on a mortgage fi. fa., with interest, secured by mortgage on the lands hereinafter described. Ledford owes Mauler & Co. $338.48, with interest, on a mortgage fl. fa. secured in the same way; and he owes Ross & Co. $411.55, with interest, on a mortgage fi. fa. secured in the same way. Ledford and Ridley, as makers, and R. H. Baker, as endorser, owe O'Bryan Bros. $69.46 as principal, with interest and costs, on a judgment in favor of O'Bryan Bros, against Ledford and Ridley, rendered April 19, 1893; the judgment not being against Baker as endorser, but he was endorser on the note upon which the judgment is based, which note was given as part purchase money for the land hereinafter described, and taken up from C. L. Hardwick & Co. On September 3, 1888, R. H. Baker sold to Ledford and Ridley certain lands, describing them, for $2,000,—$500 due January 1, 1889, and notes for $500 due January 1, 1890, $500 due January 1, 1891, and $500 due January 1, 1892. Ledford and Ridley took possession, and, with the farming business, carried on a general mercantile business for a time, when Ledford bought Ridley out, both in the land and store. Baker indorsed the three notes in blank, and either sold them or pledged them to Hardwick & Co. Hardwick & Co. held the two last notes as owners, or controlled them in some way. Petitioners sold Ledford goods for the general mercantile business above mentioned, and on May 20, 1890, Ledford executed to them mortgages of equal date and dignity with each other on said land, to secure his indebtedness to them; the balance of said debt being the amount set out above as due them. On January 12, 1891, the note next to the last one being in possession of Hardwick & Co., and due, and they wanting their money, and petitioners having rights secondary to these purchase-money notes, and wishing to help Ledford to prevent suits, advanced to Ledford the amount now held by them. as a judgment for the purchase money above set out, paying the money to Hardwick & Co. On May 18. 1891, Ledford transferred in writing to Weatherly and Leonard, traveling salesmen, agents, and representatives of two of petitioners, and representing by request the other, the bond for titles to said land made to Ledford and Ridley by Baker as further security to petitioners for their debts; but, while the date of the transfer as appears from said endorsement is May 18, 1890, petitioners believe it was dated back, at Ledford's instance, perhaps just one year; the exact reason for his wanting it dated back being not now remembered. Matters stood thus until January 1, 1892, when the last note of Ledford and Ridley for $500 fell due, held by Hardwick & Co., and, they wanting the money due them, and Ledford not paying, they began, in connection with Weatherly and Leonard, to look into matters closely, and they ascertained for the first time that Baker had no title to the land, but the title was in his wife; and, Ledford and Ridley being both insolvent, and the debts held by Hardwick & Co. and petitioners both being in jeopardy, unless they could get the land papers in such shape that they could divest her title, Weatherly and Leonard, representing petitioners, and F. T. Hardwick, acting for Hardwick & Co., examined the purchase money notes, with the endorsements and the bond for titles held by Weatherly and Leonard, transferred to them by Ledford, and the amount of debts due petitioners secured by the mortgages and bond for titles, and determined to try to get the title from Mrs. Baker, so as to get the land certainly fastened; and when obtained it was distinctly understood and agreed that it was for the benefit of petitioners and Hardwick & Co., the purchase-money debt being the first money paid from the lands. lt was discussed in whose name the deed from her should be taken; Hardwick suggesting Weatherly might take it, and each agreeing the other might take it; and finally Weatherly handed Hardwick the bond for titles, who said he would take it to Mrs. Baker, and get the title made to him for the protection of all, and did obtain the deed, and some days afterwards returned the bond, with the statement he had the deed as agreed, from Mrs. Baker. The deed was made on January 1, 1892, to Hardwick, and, while it is a plain deed upon its face, it was made with the express understanding between Weatherly, Leonard, and Hardwick, in trust for them all, that Hardwick held the title both for petitioners and Hardwick & Co. ln reality, Baker, in making the sale acted as agent for his wife, and in the execution of the bond for titles, and she knew it, and ratified it affirmatively, or else, by her silence, acquiesced in it, and took the benefits accruing from the payments made by petitioners and Ledford, using the proceeds of goods furnished by petitioners; and she cannot, in equity and good conscience thus do. Hardwick & Co., with knowledge of all these facts to F. T. Hardwick, a member of the firm, brought a proceeding to the October term, 1893, of the superior court of Whitfield county, setting up that on the date of the execution of the deed by Mrs. Baker to Hardwick she executed it to procure Hardwick & Co. that day to purchase said promissory note, and pay the money therefore, when in fact the deed recites on its face that it was made for a consideration of $2,000, the amount of the original purchase money, and Hardwick & Co. had been the owner of the note by absolute purchase more than a year before the date of the deed. Hardwick & Co., in said petition, prayed judgment against Mrs. Baker, and a specific lien upon the land; that it be sold as her property, and, after paying their debt, the balance be paid to her; when in fact she is not known as maker or endorser of their debt (unless by ratification of the act of her husband, as above set forth), and the deed was procured from her for petitioners and Hardwick & Co. The counsel of petitioners had frequent conference with F. T. Hardwick and his counsel about how to bring the land to sale under their respective liens, and proposed to join as plaintiffs or defendants in any proceeding that might be necessary to get a proper decree to protect all parties in their rights, and supposed it was agreeable, until they learned of the proceedings above mentioned, and then petitioners' attorneys went to Baker, and asked, without cost to Mrs. Baker, whose agent he was, that they be allowed to file her answer and set up the facts, making petitioners parties to the case, and get a decree that would protect all parties; and, while Baker did not agree, as his wife's agent, that said counsel might do so, the latter thought it was agreeable, and partially prepared an answer, and expected to finish and file the same during the term to which the same was returnable, but during the absence of such counsel from said term under leave of the court Baker sent for Starr, an attorney, and had him prepare an answer admitting all the allegations in the petition of Hardwick & Co., and filed a consent that a decree might be taken at the first term, and accordingly a decree was taken against her for the debt of Bedford and Ridley as makers and Baker as endorser, for the judgment previously recovered by Hardwick & Co. against said parties, together with counsel fees, and directing the land to be sold as her property, and. when the debt of Hardwick & Co. is paid, the balance to be paid over to her. Execution has issued on this claim, which has been levied on the land as hers, and the land is advertised for sale. lf the sale is made, petitioners will be without remedy for their money. Ledford is wholly insolvent, and so are Baker and Mrs. Baker. Hardwick & Co., or F. T. Hardwick, and Baker, Mrs. Baker, and Ledford are in collusion to defeat the rights of petitioners, either in the interest of Mrs. Baker or Ledford. The land is worth all the debts controlled by petitioners and Hardwick & Co., and petitioners make no point now, and never did, that when sold Hardwick & Co. would get their money first; but, if the land is allowed to sell under this execution, petitioners can get nothing, which would be an unconscionable fraud on them. Ridley, long prior to the execution of the mortgage and deed, parted with his interest to Ledford. Petitioners prayed that the sale sought to be made under the execution be enjoined, and the decree be annulled; that the title to the land be decreed in Ledford, and the land sold, and the proceeds paid first to the purchase money, then to the mortgage liens of petitioners, and the excess, if any, to Ledford; that, if petitioners are mistaken in these prayers, F. T. Hardwick be decreed their trustee under the deed made to him by Mrs. Baker, and as such protect their interests, as he has those of Hardwick & Co., and, if he refuse to do so, that petitioners have judgment against him and Mrs. Baker, and a decree against the land as her property; that she be required to ratify as a whole the sale of her land by her husband, and not only as a part, and be required, with Baker, to make good the bonds for title to Ledford; for general relief, etc. By amendment, petitioners addressed questions to Baker and his wife, in substance as follows: Did Baker sell Mrs. Baker's land to Ledford and Ridley, in 1888, with or without her consent and knowledge, or was it with her consent and knowledge, and in good faith, both intending that Baker's act should be carried out, and the bond be complied with? How much money has been paid to Baker or Mrs. Baker or both on the land, and did not Mrs. Baker know the money was being paid by Ledford, and did she not say to Baker that it was all right, and that she would carry out his contract, and make a deed in compliance with his bond at the proper time, or words to that effect? Did not Baker know he had no title to the land, and was not the title in Mrs. Baker's father, or his estate, at the time of the sale to Ledford and Ridley? As whose agent was Bauer acting at the time, and was it with or without the knowledge of his principal? Did Mrs. Baker ever claim any interest in the land, after the sale to Ledford and Ridley, further than holding the title to secure the purchase money? Does she now claim any interest in it, or its proceeds if sold, and, if so, upon what grounds? Have either Mr. or Mrs. Baker, or any one for them, since 1888, returned the land for taxation, and, if not, why? Did Mrs. Baker, on January 1, 1892, sell Hardwick & Co. one of the notes given by Ledford and Ridley for the land, and, to get them to purchase lt, make a deed to Hardwick to secure him in that purchase, or any transaction of that sort, on that day? When the deed was executed by Mrs. Baker to Hardwick, why was the consideration named $2,000? Was not that the price Baker, acting as her agent, had sold the land for, and was not the deed made for that expressed consideration, to be in line with and in harmony with the bond for titles, and to comply with the bond? Hardwick & Co. and F. T. Hardwick answered, in brief: All the information they have about plaintiffs' mortgages or debts is derived from hearsay. They never felt any interest in inspecting or inquiring into plaintiffs' mortgage fl. fas., or the debts on which they were made. lt has never been pretended by plaintiffs or their agents that those mortgages or fl. fas. could in any way come into competition with respondents' claim against Ledford and Ridley, as a lien on the land, but the contrary was always conceded by Weatherly and Leonard and is conceded by plaintiffs. lt is not true that Baker indorsed and delivered to respondents three of the purchase-money notes of Ledford and Ridley. Respondents never had title to any of these notes except those falling due January, 1891, and 1892. Hardwick & Co., about June, 1890, acquired possession of the note due January, 1891, in a transaction with one R. P. Baker, as collateral security for money borrowed from their bank by R. P. Baker; and about the same time acquired the note due in January, 1892, from R. H. Baker, as collateral security for money loaned by them to him. Some time afterwards, and before January 1, 1891, respondents learned that Weatherly and Leonard were interested in having these two notes paid off, and they were advised that respondents held the notes, and would expect and require them to be paid as they fell due. At that time Weatherly, Leonard, and Ledford appeared to be working together in relation to these notes, and all of them informed respondents that the notes would be paid as they matured. Weatherly and Leonard both told F. T. Hardwick then, and repeatedly afterwards, that if Ledford did not pay the notes they would, and that they would be obliged to pay them if Ledford did not, in order to protect themselves, or the firms they represented, on debts due by Ledford. ln December, 1890, Ledford came into respondents' bank, and notified them that he had turned over to Weatherly and Leonard some produce, and that Weatherly and Leonard would pay the note due January 1, 1891; and about January 12, 1891, two payments were made on this note, one by Weatherly and the other by Leonard, being in full of the note, which was delivered to Weatherly and Leonard. When this note was paid by Weatherly and Leonard they asked that the sums so paid be entered on a slip, and this slip be pinned to the note, saying they wished to keep this note alive, as it was better secured than some other claims they owned, and that the proceeds of the produce would be credited on those other claims. As Ledford had told respondents to expect payment out of his produce, they demurred to this course, and finally consented to it solely upon the promise of Weatherly and Leonard that, if any contest ever came up, this note should not rank with, or have the same lien on the land as, the note due January, 1892; respondents' object being to make the latter note more secure. This agreement has been referred to and acquiesced in several times since, and stands now undisputed, so far as respondents know. ln as much as all the purchase-money notes had then been paid except that maturing January 1, 1892, which respondents held to secure money borrowed by R. H. Baker, and in consideration of and relying upon the repeated assurances of Weatherly and Leonard that they were obliged to and would pay the notes promptly if Ledford did not, respondents, on May 11, 1891, bought the full title to the note due in January, 1892, outright from R. H. Baker, giving him credit therefore on his indebtedness to them. But this purchase was made in consideration also of Baker's express promise that the title to the land should be deeded to respondents to secure the payment of this note, and not to secure anything else, whenever respondents should call for it. ln the summer of 1891 respondents learned from Weatherly that he had advised Ledford to apply to a loan association for a loan on the land sufficient to pay all of Ledford's debts, but that the loan might not be obtained on account of the title to the land not being in Baker. This was the first notice respondents ever had as to any defect in Baker's title, and caused them to institute an investigation, resulting in finding that the title was in Mrs. Baker. They concluded to try to get Baker to induce his wife to deed the land to them (respondents) to secure this note, and told Weatherly of this determination, to which he made no objection, and had no right to make any; and they asked him to lend them the bond as a guide in drawing a deed, for the proper description of the land, for Mrs. Baker to sign. A deed was accordingly drawn to F. T. Hardwick, and D. K. McKamy took the deed, and went with Baker to the latter's house, to get it signed; but Mrs. Baker refused to sign it, without giving any reason. ln a few days respondents returned the bond for titles to Weatherly. This was the first and only time they ever examined or saw it. This was in the summer of 1891, and there was then no written assignment thereof indorsed thereon as alleged in the petition, as now remembered. Respondents also told Weatherly of her refusal to sign, freely and fully communicating these matters to Weatherly and Leonard, because of the interest they expressed and seemed to feel in the payment of the note, not doubting that those whose business it was for the note to be paid, and who had repeatedly promised to pay it if Ledford did not, would be glad to see it safely secured, so, if they should have to pay it, according to their promise, they would have security for their reimbursement to the extent of such payment; and so they seemed to regard it at that time. Respondents deny that in any of the interviews with Weatherly and Leonard, or either of them, anything was said by respondents, or either of them, that could be understood that the deed respondents were going to try to get from Mrs. Baker was for any other purpose than solely to secure respondents' said last note, and they deny that there was any contract or understanding to the contrary. On January 1, 1892, F. T. Hardwick asked Weatherly to pay this note. He declined to make any direct response, remarking that he would see about the matter later in the day, and a little later on the same day came back, and said he had already invested in Ledford all the money he could, and that his attorney bad advised him not to pay any more. Hardwick insisted he should pay the note, reminding him of his promise to do so, which he did not deny, but simply said he could not invest more money in Ledford. Hardwick then said to him that he must try to secure the bank, and then told McKamy, in the presence of Weatherly, to draw up a deed to the land, and try to get Mrs. Baker to sign it, to secure the note due the bank. Weatherly said nothing, and walked out. McKamy then drew up the deed, and took it, the same day, to Mrs. Baker, and she executed it for the sole purpose of securing the note due to Hardwick & Co. The deed was on its face an absolute and unconditional deed to F. T. Hardwick, but was in fact made solely to secure the note held by Hardwick & Co., and was so understood by all the parties. lt is not true that, when the note fell due, respondents, in connection with Weatherly and Leonard, then began to look into matters, and then found that the title to the land was in Mrs. Baker, but these facts were known to the parties in the summer of 1891. lt is untrue that when the note fell due respondents, Weatherly, and Leonard consulted as to how they might divest the title in Mrs. Baker for the common benefit and security of petitioners' debt and respondents' note. And it is not true that Weatherly and Leonard examined the papers, and determined to try to get the title from Mrs. Baker, so as to get the land certainly fastened, nor that, when obtained, it was agreed that it was for the benefit of petitioners Hardwick & Co. No such thing ever occurred, nor were such understandings had at any time. lt is not true that Weatherly handed the bond for titles to Hardwick on January 1, 1892, nor was there any discussion in whose name the deed from Mrs. Baker should be taken; nor did Hardwick say he would take it to Mrs. Baker, and get the title made to him for the protection of all, and did take it, and obtain a deed, and some days afterwards return the bond, with the statement he had the deed as agreed from Mrs. Baker. When Hardwick applied to Weatherly for the bond for title in the summer of 1891, to get the description of the land, he told Weatherly, if Weatherly and Leonard would take up the note, or secure it in writing, he would advise Mrs. Baker to make the deed to them, if it was satisfactory to Ledford, and Baker's bond should be surrendered to him, so that the adjustment would be satisfactory to all parties. Weatherly declined to do this, but delivered the bond to Hardwick for the purpose for which Hardwick wanted it, without objection or intimating any desire that the deed should be taken to secure any claim save that of Hardwick & Co. What Hardwick thus said to Weatherly was said by him solely on his own motion, to get the bank's debt into a safe condition. The reason given by Weatherly for declining to assume the debt in writing was that he and Leonard would not want to give their own written obligation, as the debts they controlled belonged to the houses they represented. When Hardwick applied to Weatherly, in the summer of 1891, to get the bond for titles, he told Weatherly why he wanted it, and Weatherly made no objection, but appeared to be perfectly willing, because, as respondents suppose, he felt at least morally bound by his promise to nay the note if Ledford and Ridley, and in executing the respondents' right to priority of payment out of the land. Neither petitioners nor their agents ever did anything towards procuring the deed from Mrs. Baker. Respondents never heard of the claims now set up by Weatherly and Leonard until they found them in the petition. Respondents do not admit that Baker, in making the sale to Bedford and Ridley, and in executing the bond for titles, acted as agent for his wife. All they know on this point is what appears on the papers, which indicated that he executed the bond in his individual right and name, and that the notes were made payable to him in his own right. They do not know what passed between Baker and his wife, nor that she ever got any of the benefit of the purchase money. On the contrary, they know that Baker used at least the two last notes in his individual business, as before stated. When respondents originally took said two notes as collateral security, and when they purchased outright the last note, they believed that the title to the land was in Baker, and the land bound for the payment of the notes as purchase money. They deny any ratification by Mrs. Baker of the sale by Baker, and deny that her deed to Hardwick ought to be affected by any such pretended ratification. The allegations of petitioners as to conferences between counsel, etc., are irrelevant. lt is true that counsel for petitioners had interviews with Hardwick and respondents' counsel as to the proceedings each would or could adopt, but it was never pretended by petitioners' counsel in those interviews that petitioners had any rights under the deed of Mrs. Baker to Hardwick. The only proceeding in the way of bringing the land to sale, as proposed by plaintiffs' counsel, was they wanted Hardwick to execute a deed to Ledford and Ridley, have it recorded, and then have the land sold under the judgment of Hardwick & Co. against Ledford and Ridley, as the property of Ledford and Ridley; and, if petitioners' counsel proposed that petitioners should join with respondents as plaintiffs or defendants in any original suit to bring the land to sale, respondents have no knowledge or information of it. The proposition of petitioners' counsel for Hardwick to file a deed and sell, as above mentioned, was rejected by respondents; respondents' counsel telling plaintiffs' counsel that respondents would stand upon their own separate right under the deed from Mrs. Baker. Respondents deny all fraud or collusion with any one in the bringing of their suit against Mrs. Baker, and insist that it was their right to have their decree at the first term, as it was with the express consent of Mrs. Baker, the sole defendant. lf petitioners or their counsel intended to make any application to the court for petitioners to be made parties to the case between respondents and Mrs. Baker, respondents never heard of it before the decree was rendered; nor did they ever have any notice of such intention until the petition in this case was filed.

 

The answers of Baker and Mrs. Baker were as follows, in brief: When Baker sold the land to Ledford and Ridley, the legal title to the land was in Dr. Foute, Mrs. Baker's father, who died since the sale, in May, 1890, without making any will. But he had repeatedly declared his intention and desire that Mrs. Baker should have the land, and after his death his heirs at law, by agreement, wound up the estate without administration, and all of them except one, who had been fully advanced by her father, deeded their interest in the land to Mrs. Baker. Knowing that Dr. Foute intended the land for Mrs. Baker, Baker, as head of the family, assumed the right to sell the land as he did sell it, without asking or receiving from her any special authority to do so. But he always talked freely to her about his business matters, told her before the sale that he thought it best to sell the land, and after the sale told her of the sale, and she made no objection. There was no fraudulent conspiracy between them or with Hardwick & Co. or any one to defraud petitioners or any other person. Baker acted in good faith. Baker used all of the notes given by Ledford and Ridley for the purchase money of the land, and all the money paid by them to him, in his private business, and has never paid his wife any part thereof, nor invested any part in any way for her use and benefit, except the benefit she may have received as the wife of Baker, in the way of support and maintenance from him as a member of his family. The notes falling due January 1, 1891, and January 1, 1892. were originally indorsed and pledged by Baker to Hardwick & Co. as collateral security for money borrowed. About May, 1891, the note due January 1, 1892, was sold by Baker to Hardwick & Co. in payment of Baker's debt to them for borrowed money, and turned over to them absolutely, they giving him credit therefore on his indebtedness to them. As part of the consideration to induce them to purchase this note, Baker promised that a deed should be made of the land to secure to them the payment of the note whenever thereafter required by them.  ln June, 1891, a deed was presented to Mrs. Baker, to be executed by her to secure the payment of this note, but she declined to sign it at that time. On or about January 1, 1892, when the note fell due, she executed a deed to F.T. Hardwick, which, though absolute in form, was really given to secure the payment of this note, and not to secure any claim of petitioners, or anything else. Baker induced her to sign this deed, and she consented to do so solely for the purpose of carrying out the promise above mentioned, made by him to Hardwick & Co. Baker had never heard of any request or expectation by Weatherly and Leonard that they or the petitioners should have any sort of interest under the deed, and no one asked Mrs. Baker to make the deed to secure any claim except the note of Hardwick & Co., and she never thought of or intended the deed as security to any one except Hardwick & Co. Mrs. Baker now claims that she should be paid out of the proceeds of the sale of the land about $64, with interest, on two claims she holds against Ledford, but she only claims that this be paid to her after the judgment of Hardwick & Co. and the judgment held by one of petitioners for $69, for a small balance on the purchase money, are paid. All the balance of her interest under the decree in favor of Hardwick & Co. against her she has transferred to Ledford. Neither Baker nor Mrs. Baker have given in the land for taxes since the sale, because, Ledford and Ridley being in possession of the land under the purchase, it was Baker's understanding that they were bound to pay the taxes. Mrs. Baker made no defense to the suit brought by Hardwick & Co. against her, because she did not think it right to do so, and she admitted the facts as charged in that suit, because she regarded the claim as substantially true, and because she had no just and honest defense against the relief as sought by Hardwick & Co.; and, having no defense that she was willing to make, she consented to the decree being rendered at the first term, because she believed it lawful and right to do so, and without any intention to wrong or hurt petitioners in this suit, or any other person. She does not know why the consideration of the deed made to F. T. Hardwick was expressed therein as $2,000. She had nothing to do with the drawing up of the deed, and was not consulted about it. lt was presented to her ready drawn, and she signed it as it was, without anything being said about the consideration expressed therein. She received no money or other valuable consideration for making the deed.

 

The evidence introduced on the hearing was conflicting upon the material questions in the case, and especially upon the question as to whether Hardwick. in taking the deed from Mrs. Baker, acted under an agreement or upon an understanding that he would do so to protect petitioners as well as Hardwick & Co. The judge presiding ordered that a temporary restraining order previously granted be revoked; that the execution issued from the decree of Hardwick & Co. against Mrs. Baker proceed, and that the land be sold; and that the surplus from the sale, if any, above what it took to pay off the Hardwick & Co. execution, be held up to await the further direction of the court .

To the granting of this order and refusing the injunction prayed for petitioners excepted.Jones & Martin, for plaintiffs in error. R. J. & J. McCamy and McCutchen & Shumate, for defendants in error.

PER CURlAM. Judgment affirmed.

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The Southeastern Reporter 1904: MORGAN v. MAYOR, ETC., OF CITY OF COHUTTA. (Supreme Court of Georgia. June 9, 1904.)

JUSTICE OF THE PEACE—J (TRY TRIAL— APPEAL —MUNICIPAL CORPORATIONS—MONEY ORDER—PLEADING.

1. An appeal to a jury in a justice's court from a judgment against a municipal corporation must be entered in the name of the corporation.

2. Where, therefore, in such case, an individual, W., described as mayor pro tem. of the corporation, recited in the appeal bond, which was signed by \V., "Mayor pro tem.," that, being dissatisfied with the judgment, he entered "his" appeal, this was not an appeal by the corporation, and should have been dismissed, even though the corporation's name appeared in the caption as party to the original case, and \V., as mayor pro tem. of the corporation, for the corporation, acknowledged himself bound as principal.

3. An order for money, drawn by a municipal corporation upon its own treasurer, payable upon demand and without condition, is, in effect, a promissory note, and is an "unconditional contract in writing," within the meaning of Civ. Code 1895, § 4134. Where, upon demand, such order is not paid, and suit is brought thereon in a justice's court, the defendant must make its defense at the first term.

4. It is too late, on the trial of an appeal to a jury in a justice's court from a judgment rendered by the magistrate in favor of the plaintiff upon an unconditional contract in writing, for the defendant to file a plea, when it affirmatively appears that no defense was made at or before the first term of the case. Morgan v. Prior, 36 S. E. 75, 110 Ga. 791.

5. For the reasons above stated, and also because the verdict of the jury in the justice's court was wholly without evidence to support it, the judge of the superior court erred in overruling the certiorari.

(Syllabus by the Court.)

Error from Superior Court, Whitfield County; A. W. Fite, Judge.

Action by W. M. F. Morgan, for use, etc., against the mayor and commissioners of the city of Cohutta. Judgment for defendants, and plaintiff appeals.

Reversed. W. E. Mann and R. J. McCamy, for plaintiff in error. W. M. Jones and W. C. Martin, for defendants in error.  SIMMONS, C. J. Judgment reversed.

 All the Justices concur.

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