There was not sufficient evidence of the cutting of any definite amount of timber to warrant the submission to the jury of the question that the defendants had cut timber of a class not included in the conveyance to them. If the evidence was sufficient to show the cutting of any timber which was not within the exception-which is doubtful it showed no amount or value on which a finding on that issue could be based, so as to require the judge to submit that issue to the jury.

Judgment affirmed. All the Justices con

cur.

(145 Ga. 592)

and cross-tie lease from D. S. Wall to B. H. | deed on which they rely to establish their Tanner, conveying all pine cross-tie timbers," own title. making reference to the timber lease between his grantor, Wall, and the Sweats, as a means of additional description. As he was entire owner both of the land and the timber, his rights as sole owner were not dependent upon whether the Sweat timber lease had expired or not; but as owner he had a right to except from his conveyance to the plaintiffs the timber covered by that lease, regardless of whether, in the hands of Sweat or his transferees, it would have been enforceable against him or not. He did make the exceptions, and what he excepted from his conveyance to the plaintiffs never passed to them. It was not a question of reversion to the owner of the land, because the timber may not have been cut within the time fixed expressly by the parties or impliedly by law, but was a case in which the plaintiffs never received the title to that which Tanner said was excepted from his conveyance; and he might either write out the exception of that which was excepted in the deed itself, or refer to some other instrument in whole or in part for that purpose. The plaintiffs having introduced as a part of their muniment of title the conveyance from Tanner to them, they could not attack it as not correctly stating the contract, unless by proceedings to reform it, either in the same or in a separate action, and this they did not do. Accordingly, on the trial of the case there was no error in granting a nonsuit at the close of the plaintiffs' evidence.

2. We cannot declare the description in the Tanner deed, on its face, to be too vague and insufficient to make a valid exception, and the description is strengthened when taken in connection with the fact that Tanner in his deed to the plaintiffs gave the numbers of the lots he conveyed to them, and then said that he "hereby excepts the following timber privileges on the above-described lands." The plaintiffs did not undertake to attack the conveyance to them as being insufficient to convey the land, yet it excepts certain things, and specifies as an exception "all the pine sawmill timber as per lease from D. S. Wall to C. M. and F. L. Sweat," and the lease contract referred to names these same lots. We are not obliged to depend entirely on the description in the Sweat conveyance, but we have linked onto that the fact that the grantor is making that reservation out of the lot or lots he is conveying to the plaintiffs plus the added exception of the sawmill timber on the lots conveyed. If there is any doubt as to the sufficiency of the description in the Sweat conveyance, the description is made stronger when the timber is excepted out of the very property which Tanner conveyed to the plaintiffs by the

GUEST v. GUEST.

(No. 572.) (Supreme Court of Georgia. Aug. 16, 1916.) (Syllabus by the Court.)

1. EJECTMENT 82 EVIDENCE-TITLE OF PLAINTIFF.

In an action of ejectment, where the demise was laid in an administrator de bonis non of the estate of a named decedent, the appointment and qualification of such administrator was a necessary part of the plaintiff's title; the usual way of proving administration being by the introduction in evidence of letters of administration. Deubler v. Hart, 139 Ga. 773, 78 S. E. 176. Where, on the trial of such a case, no letters of administration were put in evidence, and the administration was not otherwise proved, it was error for the trial judge to direct a verdict in behalf of the plaintiff for the land which was the subject-matter of the action. [Ed. Note.-For other cases, see Ejectment, Cent. Dig. §§ 222-228; Dec. Dig. 82.] EJECTMENT 90(2) 2. DEEDS 114(4) EVIDENCE-DESCRIPTION OF PROPERTY. In the trial of an action of ejectment the demise was laid in the name of M. J. Guest, as administrator de bonis non of the estate of F. M. Guest. On the trial the court permitted the plaintiff to put in evidence, over objections of the defendant, a deed from John Moore to F. M. Guest, the decedent, executed January 16, 1884, conveying unto F. M. Guest, his heirs and assigns, "all that tract or parcel of land situate, lying, and being in the seventh district of said county [Clinch], and known and distinguished in the plan of said district by the No. 216, containing 460 acres, more or less." The objections urged against the admission of such deed were as follows: (a) It is not a link in a chain of title originating in the state, nor a link in a in the plaintiff. This reason was not sufficient chain of title showing title into F. M. Guest or ground for the exclusion of the deed from evidence. The action was for the recovery of a described portion of the lot mentioned in the conveyance, and there was evidence that the grantee had been in possession of the lot described in the deed for more than 25 years prior to his death, and that he died in possession of the same. (b) Because the description of the land purported to be conveyed is so indefinite that no specific tract of land can be located as having been conveyed by the deed. Neither was this a good reason against the admissibility of the deed. It is true that where a deed purports to convey a part of a larger tract, it must contain something by which the smaller area can be segregated from the larger. Moody v. Vondereau, 131 Ga. 521, 62 S. E. 821. It does not

appear, however, that the deed under considera- | cian's certificate and sixty cents to pay for tion in the present case showed upon its face same. Each applicant shall have entered upon that only a portion of the lot therein named his application the name or names of the perwas sought to be conveyed, but, on the contrary, son or persons to whom he desires his benefits the deed purports to convey all of lot 216 in the paid." In an action against the society, brought seventh district of Clinch county, containing by a person alleged to be the sister of a deceased 460 acres, more or less; that is, the whole of member, the petition alleged that the decedent that lot was conveyed. Notwithstanding there had not obtained a certificate; that after he may have been a mistake as to the number of had been a member for some time his father-inacres contained in the lot, and though the court law fraudulently procured a certificate to be iswill take judicial cognizance of the fact that sued in his favor as a beneficiary; that, upon whole lots in the county of Clinch contain 490 the discovery of this fact, the member wrote to acres of land, these circumstances would not the proper official of the society of which he suffice to bring the deed within the scope of the was a member, repudiating the certificate thus rule above announced, and render it inadmissible issued, and requesting that the person addressed in evidence. should obtain the "policy" from the father-inlaw of the member and issue a certificate in favor of his sister; that a committee was apmember, to investigate the matter; that the father-in-law of the member promised to deliv er up the certificate, but later stated that he had lost it; that, after the death of the memAction by M. J. Guest, administrator, ber, proof of death was made, and payment was against Miranda Guest. Judgment for plain-made to the father-in-law as the holder of the certificate. Held, that it did not appear that tiff, and defendant brings error. Reversed. any certificate had been issued which named the Lankford & Moore, of Douglas, for plain- plaintiff as the beneficiary, or that she was one of the class of persons named in the by-laws tiff in error. W. T. Dickerson, of Homer- who might be made beneficiaries of such certifiville, and Parker & Walker, of Waycross, cates. She neither showed that she was an acfor defendant in error. tual beneficiary in a certificate, nor that she was one who in equity was entitled to be treated as a beneficiary, or to enforce the rights of

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 322, 326, 388; Pec. Dig. 114(4); Ejectment, Cent. Dig. § 255; Dec. Dig. pointed by the local lodge, of which he was a 90(2).]

Error from Superior Court, Clinch County; J. I. Summerall, Judge.

FISH, C. J. Judgment reversed. All the a beneficiary. Justices concur.

(145 Ga. 607)

(a) If the petition be treated as one seeking to enforce a change of beneficiaries, it failed to show that there had been a compliance with another section of the by-laws, requiring for that

SMITH v. GRAND LODGE KNIGHTS OF purpose the production of an affidavit, and the

PYTHIAS. (No. 578.)

payment of a small sum of money.

[Ed. Note.-For other cases, see Insurance,

(Supreme Court of Georgia. Aug. 16, 1916.) Cent. Dig. § 1996; Dec. Dig. 815(1).]

(Syllabus by the Court.)

1. INSURANCE 815(1)—FRATERNAL BENEFIT

INSURANCE-ACTIONS-PLEADING.

A mutual benefit society had certain by-laws, some of which were as follows: "That a bureau of endowment is hereby created, whereby, upon satisfactory proof of the death of a sir knight in good standing who has complied with all the requirements of the order and the laws as are herein set forth, a sum of money named in his certificate shall be paid to his widow, orphans, or dependent relatives in accordance with the provisions hereinafter made, and such other al

2. APPEAL AND ERROR 843(2)-REVIEWSCOPE AND EXTENT.

The petition did not set out a cause of action, and was properly dismissed on general demurrer. This being true, it was a work of supererogation to dismiss it again on the ground that it was not brought in the proper jurisdiction, if, indeed, under the allegations, that point was properly raised by demurrer or by motion, instead of by plea. It is accordingly unnecessary to deal with the rulings in regard to the question of venue.

[Ed. Note.-For other cases, see Appeal and

Error, Cent. Dig. § 3338; Dec. Dig. 843(2).)
Error from Superior Court, Richmond
County; H. C. Hammond, Judge.

Action by Agnes Smith against the Grand Lodge Knights of Pythias. Judgment for defendant, and plaintiff brings error. Affirmed.

terations or amendments as shall be adopted
by the Grand Lodge from time to time. Every
person upon becoming a member of the order,
who shall have been charged in the knight rank,
shall immediately make application through the
lodge for a certificate which will entitle him
to the benefits of section 1 in this article. Ev-
ery knight shall pay to the endowment bureau,
through his lodge, the amount prescribed by the
Grand Lodge monthly in advance, and it shall
be the duty of the master of finances to collect
the same in preference to lodge dues, and pay
it over to the treasurer of the endowment bureau
on or before the 20th day of each month. Ev-
ery lodge shall forward to the Grand Keeper of
Records and Seal all applications for certificates
within ten days after the applicant's initiation
into the knight rank, with the examining physi- the Justices concur.

both of Augusta, for plaintiff in error.
Jas. S. Bussey, Jr., and Geo. T. Jackson,
Os-
well R. Eve, of Augusta, for defendant in
error.

LUMPKIN, J.

Judgment affirmed.

All

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Ga.)

(145 Ga. 616)

MILLER et al. v, HINES et al. (No. 583.) (Supreme Court of Georgia. Aug. 16, 1916.)

(Syllabus by the Court.)

1. APPEAL AND ERROR 592(2)-RECORDQUESTIONS PRESENTED FOR REVIEW-BRIEF OF EVIDENCE.

The exception is to a refusal to grant a new trial. That part of the transcript of record called a brief of evidence consists of a full stenographic report of the oral evidence; copies of deeds and other documents being set out in extenso, and much of this matter being irrelevant and superfluous. Manifestly there was no bona fide effort to brief the evidence, as required by Civ. Code 1910, § 6093. As there are questions which can be decided without reference to the evidence, the motion to dismiss the bill of exceptions will be denied; but no question will be decided which depends upon consideration of the evidence.

[For other cages, see Appeal and Error, Cent. Dig. §§ 2620, 3126; Dec. Dig. 592(2).]

2. PLEADING ←34(6)—MOTION TO DISMISS AT TRIAL INSUFFICIENCY OF PLEADING.

The petition set forth a cause of action, and was sufficient as against a general demurrer. There was no error in overruling the motion to dismiss the petition, presented for the first time upon the trial at a term subsequent to the apThe description of pearance term of the case. the property as alleged in the petition was vague, but sufficient to amend by, and will not require a dismissal of the case on motion at the trial term. Lane v. Lane, 87 Ga. 268, 13 S.

E. 335.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. $$ 72, 73; Dec. Dig.

34(6).]

3. EXECUTORS AND ADMINISTRATORS 158-
SALES 1(4), 17, 66, 416(1)
BOUND POWER OF ADMINISTRATOR
SCRIPTION-ADMISSIBILITY OF EVIDENCE.

-DE

An executory contract between "F. C. Mil; ler, administrator of the estate of E. P. Miller," and H., whereby the former agreed to sell to the latter certain personal property exceeding $50 in value, and to lease for turpentine purposes certain real estate of the intestate, properly construed, was an agreement by F. C. Miller in his representative capacity. Civ. Code 1910, §§ 3570, 3594; Hart v. Lewis, 130 Ga. 504, 61 S. E. 26; Raleigh, etc., Railroad Co. v. Pullman Co., 122 Ga. 700(9), 709, 50 S. E. 1008; Phinizy v. Bush, 129 Ga. 479(8), 492, 59 S. E. 259. The case differs from that of Glisson v. Weil, 117 Ga. 842, 45 S. E. 221, and similar cases relating to contracts which did not involve a sale of the property of another. Being an agreement by an administrator to make private sale without order of court, it would be violative of public policy and unenforceable. Civ. Code 1910, § 4035; Campbell Coal Co. v. Baker, 142 Ga. 434, 83 S. E. 105. And, even if it were not so, it would not afford a basis of recovery in a suit for damages for breach of the contract instituted by H. against F. C. Miller individually, and other persons alleged to be heirs of E. P. Miller, for whom it was alleged that F. C. Miller acted as agent in making the contract. Trust Co. of Georgia v. Wallace, 143 Ga. 214, 84 S. E. 538.

(a) The only description of the property which was the subject-matter of the agreement was: "2 turpentine stills and fixtures, 200 turpentine dip barrels, 5 ordinary saddles, 1 Texas saddle, 16 head mules, 6 head horses, 2 four-mule wagon and harness, 3 two-mule wagon and harness, 2 timber carts, 1 gas engine and pump, 1 lot copper shop tools, 1 lot turp. tools, also one stock of merchandise now in commissary, estimated value $4,000, but to be paid for

* *

* **

* **

at invoice cost when inventory is taken, except
damaged or unmerchantable stock; all of the
above property now being located at or near
Walthourville, Ga., in Liberty county.
All the timber lands now owned by said estate
of E. P. Miller.
The lot of land on
which the turpentine stills are now located;
also the lots on which the commissary, mule
lots, and barns are now located; also all negro
shanties belonging to said turpentine location,
except the one now occupied by Robt. Hamil-
Held, that the description of the proper-
ton."
ty contained in the writing was not sufficiently
definite to render the contract a basis of recov-
ery in an action for damages for breach of the
contract. Civ. Code 1910, §§ 4106, 4222; Tip-
pins v. Phillips, 123 Ga. 415, 51 S. E. 410;
Ferguson v. McCowan, 124 Ga. 669, 52 S. E.
886; Pearson v. Horne, 139 Ga. 453, 77 S. E.
387.

(b) Where a paper of the character mentioned above is relied on as a basis of recovery in such a suit, it is erroneous to also admit in evidence, in connection therewith, a paper executed by some of the heirs at law of the intestate, purporting to constitute F. C. Miller their attorney in fact, "not only to conduct, manage, and control the business, but to sell and dispose of, at such prices as to him may seem proper, all the property of the intestate, wherever located."

(c) The executory contract and power of attorney mentioned above having been erroneously admitted, the court should not have charged the jury upon the basis thereof.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 634, 635, 64612; Dec. Dig. 158; Sales, Cent. Dig. §§ 5, 26-30. 181, 1171; Dec. Dig. 1(4), 17, 66, 416(1).J

4. EVIDENCE 370(9) VENDOR AND PURCILASER 349-ISSUES AND PROOF-DocuMENTARY EVIDENCE.

It was alleged in the petition that the defendants contracted to sell to the plaintiff the "turpentine rights in and to all of the timber lands then owned" by them, "the title to which was derived by or through" E. P. Miller, the intestate; also that the defendants, "as the heirs at law" of E. P. Miller, at the date of the contract, owned a designated number of acres of timber lands in Liberty county, Ga., upon which they agreed to sell" to the plaintiff the turpentine rights. Held: (a) In view of such allegations, it was not a good objection to the admission of certain deeds executed by other persons to E. P. Miller, conveying timber lands in Liberty county, that the pleadings did not authorize their admission. (b) Deeds of the character above mentioned, some of which were recorded upon insufficient probate, and others not recorded, having been produced by the defendants under notice to produce, if otherwise competent, would be admissible in evidence without further proof of execution.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1574; Dec. Dig. 370(9); Vendor and Purchaser, Cent. Dig. §§ 1033, 10391042; Dec. Dig. 349.]

5. SALES

416(1)—ACTIONS-ADMISSIBILITY

OF EVIDENCE.

In view of the ruling announced in the third headnote, testimony that, when the executory contract was signed, D. C. Miller, who was one of the defendants, was present and approved the contract, was inadmissible.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1171; Dec. Dig ~416(1).]

Error from Superior Court, Liberty County; W. W. Sheppard, Judge.

Action by R. C. Hines and others against

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

F. C. Miller and others. Judgment for plain- | Savannah, should be fined not exceeding tiffs, and defendants bring error. Reversed. $100, or imprisoned not exceeding 30 days.

It was contended that the ordinance was de pendent upon the legislative acts, and that the plaintiffs could not comply with it without having paid a state' license fee or tax required by those acts. Numerous grounds of attack upon the validity of the acts and All the ordinance were made. The reasons alleged for appealing to the equitable power of the court were as follows:

"Your petitioners show that the mayor and aldermen of the city of Savannah, through the OF chief of police, and other police officers of the city of Savannah, are proceeding to enforce the said acts of the General Assembly of the state of Georgia, and the said ordinance of the mayor Aug. 15, 1916.) and aldermen of the city of Savannah; and your petitioners are liable at any moment to be arrested and brought before the recorder's court of the city of Savannah for trial for not having complied wtih the terms and provisions of said acts and the said ordinance. Petitioners show that they are without adequate remedy at law; that the enforcement of said acts and ordinance will cause them to incur damages, which are incapable of exact computation, and that said damages will be sustained unless immediate relief be afforded; that the injury reparable in damages." about to be inflicted upon petitioners is ir

sufficient to authorize the interference with the ordinary method of enforcing penal ordinances or statutes.

Since this litigation was commenced, the act of November 30, 1915 (Acts 1915, Extraordinary Session, p. 107), has been enacted, which deals with the subject of the registration of motor-vehicles and mortorcycles; and the question of the validity of the acts of 1910 and 1913 on that subject has become rather a polemic than a practical question. Without entering into a discussion of the constitutionality of the acts of the Legislature and the ordinance of Savannah, whether they are constitutional or unconstitutional, plaintiffs made out no case authorizing equitable relief. The grant of the injunction was accordingly error.

Judgment reversed. All the Justices con

cur.

(145 Ga. 580)

its affairs, the inclusion of such liquidating agent as a party does not render the action multifarious.

[Ed. Note.-For other cases, see Actions, Dec. Dig. 50(10); Banks and Banking, Cent. Dig. 88 44-48; Dec. Dig. 39.]

H. A. Mathews, Judge.
Error from Superior Court, Bibb County;

Action by Guy Armstrong against the American National Bank of Macon and others. Judgment for plaintiff, and defendants bring error. Affirmed.

See, also, 144 Ga. 245, 86 S. E. 1087.

The action was brought by Guy Armstrong against the Commercial National Bank, J. J. Cobb, Cecil Morgan, and the American National Bank, for equitable relief. The defendants filed separate demurrers, which were overruled, and they jointly sued out a writ of error. The petition set forth that on September 15, 1912, the Commercial National Bank was a going concern, and that the de

MAYOR AND ALDERMEN OF CITY OF fendant J. J. Cobb was its vice president SAVANNAH v. BALMER et al.

(No. 582.)

and the defendant Cecil Morgan was a director. On that day Cobb and Morgan came

(Supreme Court of Georgia. Aug. 16, 1916.) to petitioner's place of business and solicited

(Syllabus by the Court.)

GROUNDS FOR INJUNCTION.

The questions involved in this case are controlled by the ruling in the case of Mayor, etc., of Savannah v. Granger (decided August 15, 1916) 89 S. E. 690.

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

Action by J. S. Balmer and others against the Mayor and Aldermen of the City of Savannah. Judgment for plaintiffs, and defendant brings error. Reversed.

John Rourke, Jr., D. S. Atkinson, and Robt. J. Travis, all of Savannah, Warren Grice, of Macon, and Clifford Walker, of Monroe, for plaintiff in error. Chas. E. Donnelly and Jno. E. Schwartz, both of Savannah, for defendants in error.

BECK, J. Justices concur.

(145 Ga. 618)

him to purchase some stock of the Commercial, National Bank. Cobb acted as spokesman and, in the presence of Morgan, represented that the Commercial National Bank was in a prosperous and growing condition, with a capital stock of $200,000, and that on account of its being a prosperous and growing institution it had issued an increase to its capital stock of $100,000, and that the stock was worth $120 per share. Accepting these representations as true petitioner a few days later entered into an agreement with Cobb, as vice president, and Lewis, as cashier, of the Commercial National Bank to purchase from the bank 20 shares of the increased capital stock, agreeing to pay therefor the sum of $2,400. He gave promissory notes for this sum, and has paid the same, except one for $1,500 which is now

Judgment reversed. All the being sued in the city court of Macon by the

AMERICAN NAT. BANK et al. v. ARM-
STRONG. (No. 584.)

(Supreme Court of Georgia. Aug. 16, 1916.)

ACTIONS

(Syllabus by the Court.) ~50(10)

BANKS AND BANKING 39-PARTIES-MULTIFARIOUSNESS.

American National Bank, who claims to have purchased the note from the Commercial National Bank before its maturity. It is alleged that at the time of his purchase of the stock, the Commercial National Bank was insolvent, and has remained insolvent;

that the statements made to petitioner by Cobb, in the presence of Morgan, were untrue, and were made for the purpose of deceiving him and fraudulently obtaining from him the notes for the purchase money of the stock; that the stock was of practically no value at that time, and that Cobb and Morgan knew or should have known this to be true, and that he bought the stock solely on the representations of Cobb, made in the presence of Morgan, and acquiesced in by him; that the increase of the capital stock by the (a) If the bank turns over its assets, includ- Commercial National Bank of $100,000 was ing a note for a part of the purchase money and the certificate of shares of the purchaser, not made on account of its prosperous and to another bank, for the purpose of liquidating growing condition, but in order to keep it

One who is induced to subscribe for stock in a bank on the fraudulent representation of two of its directors that the bank is in a prosperous condition, may go into equity for the cancellation of the contract of purchase, for the recovery of the purchase money paid and for a restoration of the status, and the bank and its officers who participated in the alleged fraudulent scheme are proper parties.