cember, 1912, within one year from the sale, ( facts showing that there were no other perthe plaintiffs tendered to the defendants sons entitled to share with them as heirs, so "the amount paid by the purchaser at the said sale for the land, plus 10 per cent. premium thereon from the date thereof; in fact, the tender was in an amount almost double the purchase price at the sale;" but the defendant refused the tender, and stated that it was unnecessary to make any further tender of any kind, as nothing would get the property "but a good lawsuit," and he failed to allow them to redeem. On or about Octo ber 23, 1914, the plaintiffs tendered to defendant in cash the amount paid for the property, plus interest thereon at the rate of 20 per cent. per annum, but this was refused. The tenders are "continuous." They pray that the land be decreed to be redeemed; that the deeds from the town marshal to Annie M. Webster and from her to the defendant be canceled as a cloud on the title of the plaintiffs; that the defendant be required to execute a quitclaim deed to the plaintiffs; that the title be decreed to be in them; and for process. Exhibit A attached to the petition recited a conveyance from L. J. Collins to T. L. Jones in 1889, from Jones to H. L. Gates in 1893, and from H. L. Gates to Thos. R. Gates in 1895. It then recited the death of Thos. R. Gates in 1896 at St. Augustine, Fla., and, after the word "heirs," set out the names of the plaintiffs. It then contained the statement that there was no administration and no debts. A demurrer was filed to this petition, on numerous grounds. It was overruled, and the defendant excepted. Wm. M. Farr, of Savannah, for plaintiff in error. Twiggs & Gazan, of Savannah, for defendants in error. scent of land. that they would be the sole heirs and entitled to recover the whole interest, or else how many were entitled to share with them, so that the interest which they could recover can be identified. This is the rule in actions at law to recover land. Powell on Actions for Land, § 280, and citations. Where the plaintiffs invoke the equitable power, claiming to be the owners of the land as heirs of a decedent, attacking a tax sale thereof as void, and praying that it be canceled as a cloud on their title, and that the title be decreed to be in them, the rule of pleading requiring them to make allegations of fact showing that they inherited the entire title or what interest passed to them by inheritance is the same. It is not enough, as against a demurrer specially raising the point, to allege in general terms that the plaintiffs are all of the heirs, or to refer to the decedent as their father. This does not suffice to show that the decedent left no other children, or persons standing in the place of deceased children. A widow is not unconditionally and in all events an heir of her deceased husband. She may elect to take a dower or a child's part. There is no presumption, in the absence of any direct or inferential evidence on the subject, that she elected to take a child's part; and in a suit by children of the decedent, as his heirs, to recover land owned by him at his death, it is not necessary to allege that he left no widow, or, if he left one, that she did not take a child's part. ly made in the exhibit to the petition, that There was an allegation, perhaps informalthere were no debts and no administration, which was sufficient to comply with the ruling in Greenfield v. McIntyre, 112 Ga. 691, 38 S. E. 44. Some of the grounds of the demurrer are sufficiently dealt with in the headnotes. Except as indicated, there was no error în overruling the grounds of the demurrer. Judgment reversed. All the Justices con cur. LUMPKIN, J. (after stating the facts as above). [1-3] 1-3. There is no presumption that a deceased person died leaving a will which disturbed the ordinary course of deOne who relies on that fact for recovery or defense carries the burden of establishing it. Miller v. Speight, 61 Ga. 460 (2), 462. If the allegations of the petition sufficiently showed that the plaintiffs were all of the heirs at law of the deceased owner of the lot, it was not necessary for them to allege and prove intestacy of their father. If there was a will which prevented (Supreme Court of Georgia. Aug. 18, 1916.) their inheriting, that might be set up as a de (145 Ga. 730) UNION CITY REALTY & TRUST CO. v. WRIGHT. (No. 594.) (Syllabus by the Court.) PERSON-RIGHTS. fense. There was also a claim of right to 1. CONTRACTS 187(4) — BENEFIT OF THIRD redeem the land under a tax sale. Civil Code 1910, §§ 880, 1173. The petition was not subject to the general grounds of demur rer that it set out no cause of action. There is no presumption as to what heirs a decedent left. If particular persons rely on descent to them in order to recover land, they must allege and prove, not only that the decedent was the father of the plaintiffs, but In a sale of personalty to be delivered in the future, where as a part of the consideration the vendee promised to pay a debt owned by the vendor to a third person, neither that person nor those claiming under him acquired equitable rights against the vendee in virtue of the promise, beyond the rights of the vendor through whom they claimed. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 800; Dec. Dig. 187(4).] 2. CONTRACTS 187(4)-BENEFIT OF THIRD On May 12, 1909, Harris subscribed to $4,000 PERSON-RIGHTS. In an equitable action based on a promise par value of the capital stock of the Union of the character just mentioned, it appeared City Brick Company, and gave that company that the vendor made certain misrepresentations the note in question in part for such subas to the character of the property sold, and scription. On the same day that company himself breached covenants made by him in the sold and indorsed the note to the plaintiff. contract of sale, which were of such character that the vendor could not enforce the promise On May 18, 1909, Harris executed a deed conmade by the vendee. The promise by the vendee veying certain property to the defendant, did not contemplate payment of a promissory which contained, among others, the following note made by the vendor to the third person, and an equitable action by an assignee of such a note against the vendee to compel payment of the note would not lie. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 800; Dec. Dig. 187(4).] 3. CORPORATIONS 428(10)-KNOWLEDGE or STOCKHOLDERS-IMPUTATION. clause: "I also convey my subscription of four thou sand dollars ($4,000.00) of stock in the Union City Brick Company, which the company agrees to pay for according to my contract." The defendant accepted the deed and went into possession thereunder. Harris became The vendee was a corporation, and while in insolvent immediately after executing the the process of organization the representations referred to in the second note were made to deed, and before maturity of the note the prospective purchasers of a majority of the brick company also became insolvent and was capital stock, with a view of selling the person- placed in the hands of a receiver. The abovealty and other valuable property. An agreequoted clause between Harris and the realty ment was made on the strength of the representations, the proposed purchasers of stock company inures to the benefit of plaintiff, participating at the organization meeting. At and defendant in equity and good conscience this meeting all the capital stock that was is- ought to pay the note. Plaintiff has not been sued was subscribed by the vendor and issued to him, and he transferred a majority thereof guilty of laches, is without remedy at law, to the proposed purchasers of stock. One of and prays judgment for the amount of princithem was elected president of the corporation, pal, interest, and attorney's fees provided in and, acting for the corporation, he received from the note. The defendant filed an answer, the vendor a deed, conveying the personalty mentioned in the preceding notes and contain- which was subsequently amended. It denied ing the covenant of the vendee on which the liability and any relation with the plaintiff, action was based. Held, that in thus dealing and alleged, among other things, the followwith the corporation the vendor was acting in his own interest as opposed to that of the cor-ing: The entire clause included in the deed poration; and his knowledge as to the misrep- in regard to the purchase of the stock subresentations and breach of the contract by him, scription contract was: and existence of the note sued upon at the time of delivery of the deed, would not be imputed to the corporation. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 1759; Dec. Dig. 428(10).] 4. APPEAL AND ERROR HARMLESS ERROR. sand dollars ($4,000.00) of stock in the Union "I also convey my subscription for four thouCity Brick Company, which the company agrees to pay for according to my contract; and also all the royalties derived from a twenty [year] 1050(2)-REVIEW-lease I hold from said brick company. I agree to transfer my interest in said lease on the back of same to the Union City Realty & Trust Company." The relevancy of certain evidence which was admitted over objection does not appear, but its admission would not require a new trial, in view of its character. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4154; Dec. Dig. 1050(2).] Error from Superior Court, Campbell County; R. W. Freeman, Judge. Action by Mrs. Anna M. Wright against the Union City Realty & Trust Company. There was a judgment for plaintiff, and defendant brings error. Reversed. The following were the circumstances under which the clause was included in the deed: When closing the negotiations which resulted in the deed, which was about one month before the date of the deed and before the date of the note held by plaintiff, Harris stated to defendant that he had agreed to subscribe for 40 shares, of the par value of $100 each, of the capital stock in the Union City Brick Company, not then organized; the subscription not to be paid for in money, but 10 shares were to be paid for in wood, and the remaining 30 shares to be paid for by applying certain royalties which the brick company would be due him for a 20-year lease of certain land included in that sold to defendant, which provided for a monthly royalty according to the number of bricks manufactured on the land, and a minimum sum for each month during the entire term of the lease, whether or not any bricks were manufactured, the amount of the royalties being greatly in excess of the stock subscription. He proposed to put the stock subscription Mrs. Anna M. Wright instituted an action against the Union City Realty & Trust Company, a corporation, to compel the company to pay a certain promissory note for $3,000, which had been executed by J. H. Harris to another corporation called the Union City Brick Company, and duly transferred by that company to plaintiff. On the trial the judge directed a verdict for the plaintiff. The exception is to a judgment refusing a new trial. The petition contained allegations as just indicated, and others as to the ground upon which it was sought to hold the defendant liable for the amount of the note, as follows: contract in the sale, to be paid for as rep ond part for the purpose of manufacturing and selling brick on the property herein described and at the plant herein noted, said corporation to be known as the Union City Brick Company, and to have a minimum paid-in capital stock agreed and understood that said L. M. Wright of ten thousand dollars ($10,000.00). It being is to be general manager of said brick company when organized. Said first party is to have $1,000.00 of stock in said company, same to be paid for in wood and clay. It is also agreed by said L. M. Wright and associates that said J. H. Harris is to have $3,000.00 of stock in said company, for which said Wright or his company agrees to accept the notes of J. H. Harris, payable on or before Feb. 27th, 1910, at 7% interest. It is also mutually agreed and understood between the parties hereto, that, whenever the capital stock of said company is increased from 15,000, the said J. H. Harris is to have the option of taking his pro rata share of such increase." resented, and to be the property of the de-, inafter organized by the said parties of the secfendant. After all the negotiations had been completed and nothing remained except to execute the deed to defendant, and pending the interval before signing the deed, Harris signed the note in question, for which he received the 30 shares above mentioned, without disclosing the fact to defendant, and finally executed the deed containing the clause as set out in the answer, without informing the defendant of any change in the circumstances; and defendant accepted the deed without notice that the note had been given, and on the faith of the truth of the representations of Harris above set out. In accepting the deed containing the clause it was not intended to agree to pay the note which had not been known to exist, nor to pay for the stock subscription, except in the manner Harris had represented that it was to be paid. As a matter of fact Harris never had any lease contract with the brick company or contract for royalties, and did not convey any to defendant, and wholly failed to comply with the obligations imposed upon him by the terms of the clause in the deed. Under the circumstances the covenant by defendant expressed in the deed was one to pay for stock in the manner as detailed by Harris to be delivered to defendant, and had no reference to the assumption of payment of the note held by plaintiff. Harris could not in law or equity compel defendant to pay the note made by him; much less could the brick company, or the plaintiff as transferee of the brick company, claiming under Harris, compel it to do so; for no one can avail himself of any benefits under the contract through Harris when he had no rights thereunder. which showed that the foregoing paper was (2) The plaintiff relied also upon evidence in the possession of Harris when he made the representation before referred to, in the negotiation of the sale upon which the deed to the other corporation was predicated, and that Harris refused to sign, when tendered to him, a proposed renewal contract. The date of this tender of the proposed renewal paper was not shown. It was sent to Harris in an undated letter. All the allegations of the petition were proved as alleged. The evidence touching the organization of the realty company (the defendant) and the circumstances attending the sale to it and its acceptance of the deed was as follows: Harris owned certain land in which he had interested F. G. Boatright and S. G. Slack as prospective purchasers. They agreed upon terms of purchase of interest therein, and to organize a corporation to carry out the enterprise. Instead of taking conveyance of land, it was At the trial the plaintiff relied, for proof determined to let Harris convey all the land of a subscription contract for stock in the to the corporation and receive therefor all brick company, (1) upon a paper signed by the stock, and immediately transfer to BoatJ. H. Harris and L. M. Wright, in which right and Slack specified numbers of shares Harris was designated as party of the first of stock, amounting in the aggregate to 51 part and Wright "and his associates" (nam- per cent. of the stock. The charter was obing two other persons) were parties of the tained in April, and the organization took second part. It purported to lease certain place on the 18th day of May, on which date land owned by Harris to the other parties the deed by Harris to the realty company for the manufacture of bricks, and expressed was signed. At the organization meeting, numerous cross-obligations upon the part of stock in the corporation was formally subthe other parties in regard to locating and scribed by Harris. All the stock that was operating on the land a plant for the manu-issued was issued to Harris, who immediately facture of brick. The paper was dated April transferred 51 per cent. of the entire stock 8, 1909, and stated that it should be operative until April 15, 1909; but there was a clause giving the second parties the right of renewal for a term of 20 years, if they did so on or before April 15th. After covering in detail matters as indicated above, the paper provided: "It is mutually understood and agreed between the parties hereto, and made a part of this lease and contract, that the said party of the second part and his associates shall have the privilege and right to transfer and assign all their right, title, and interest in, to and under this contract to a corporation to be here in the corporation to Boatright and Slack severally. At the same time Slack was elected president, and Harris vice president. Harris also executed the deed to the corporation and delivered it to Slack, who received it as president of the corporation. The deed and all papers relating to the organization had been previously prepared, and the meeting at which all occurred as just indicated lasted about 30 minutes. The representations which were alleged in the defendant's an swer to have been made by Harris to defendant were made to Boatright and Slack about one month before the organization meeting, at | Mo. 270, 16 S. W. 198, it was held that under which time, on the faith of such representa- the common law as recognized in the state of tions, they agreed to become purchasers and Missouri, as well as in virtue of the statute, members of the enterprise. In all other re- a person for whose benefit an express promise spects there was evidence to support all the is made in a valid contract by others may allegations made in the answer. The evi- maintain an action thereon in his own name, dence was without conflict upon all material but that the beneficiary of such a contract points, except on the question as to how the does not acquire a better standing to enforce 30 shares of stock in the other corporation it than that of a contracting party. In the (the brick company) were to be issued to Har- course of the opinion, it was said: ris by that company and paid for. Harris testified that they were to be paid for in royalties to be received under the lease contract; and Wright and Baxter, for the plaintiff, testified that there was no agreement to allow it paid for in that way. There was no denial of the testimony of Harris, Boatright, and Slack that Harris represented to the latter two that in his subscription contract with the brick company Harris was to pay for the stock in clay and royalties under the lease contract, and not in money. J. F. Golightly and Dorsey, Brewster, Howell & Heyman, all of Atlanta, for plaintiff in error. Barry Wright, of Rome, and Little, Powell, Smith & Goldstein, of Atlanta, for defendant in error. ATKINSON, J. [1] 1. The two corporations, the Union City Realty & Trust Company and the Union City Brick Company, were organized in the same community about the same time, and both related to develop ment of property owned by J. H. Harris, who was the original promoter of the first-named company, and to a lesser extent interested also in the other company. To avoid confusion, it is necessary to bear in mind that there were two corporations, and that the realty company was the defendant, which, on account of having received a deed from the brick company containing a certain clause, the plaintiff attempted to hold it liable for a note given by Harris for stock in the brick company, which that company transferred to the plaintiff. It thus appears that the defendant was not the maker of the note or otherwise a party to it. The sole basis of the alleged equitable right of the plaintiff, as transferee of the note, to compel payment by the defendant was the promise of the latter implied by accepting the deed from the brick company, which contained the clause: "I also convey my subscription for four thousand dollars ($4,000.00) of stock in the Union City Brick Company, which the company agrees to pay for according to my contract; and also all the royalties derived from a twenty [year] lease I hold from said brick company. I agree to transfer my interest in said lease on the back of same to the Union City Realty & Trust Company." Under the circumstances, if the plaintiff, in virtue of being transferee of the note, can claim against the defendant any equitable right based on the clause in the deed, it is only such right as Harris could exercise against the defendant. This proposition is "Whatever right of action a third party to such an engagement may acquire by virtue of its parties, it is clear that, on principle, such right terms against either of the directly contracting cannot be broader than the party to the contract (through whom the right of action is derived) would have in event of its breach. To state this in another form: The right of action by any outside beneficiary, for whose advantage a contract is made between two other persons, is entirely subordinate to the terms of that conquire a better standing to enforce the agreement tract, as made. Such beneficiary cannot acthan that occupied by the contracting parties themselves. Crowe v. Lewin (1884) 95 N. Y. 423; Wheat v. Rice (1884) 97 N. Y. 296. The plaintiff's rights in the case before us flow from the agreement between Mr. Harrison and Mr. Ellis, Jr., and are confined within the scope of rules of law. If the parties, when it was made, that agreement, interpreted according to the understood and intended the expression 'mercantile debts' as used therein, to exclude the its meaning for them. They were the contractnotes in question, the plaintiff cannot enlarge ing parties. It is their contract to be enforced. and plaintiff has no such relation to the subject as permits him to assert the contract different from what they mutually agreed it should be." The same principle was also recognized and applied in the case of Clay v. Woodrum, 45 Kan. 116, 25 Pac. 619, the facts of which showed a contract between two parties, in which each had made covenants. A third person, who was a creditor of one of the contracting parties, was seeking to enforce an equity or right he claimed by virtue of the contract between the two parties, which his debtor had made; and the defendant set up as a defense that the other party to the contract had not performed his covenants in the contract, and therefore the defendant was not liable under the contract to the other contracting party, and as the rights of the third person were dependent upon the rights of the party to the contract through whom he claimed, he could not recover, because such other party could not. course of the opinion, it was said: In the "The third party, however, who avails himself of such contract, and claims under its provisions, is subject to the defenses arising out of the contract between the original parties." It was further said: "Woodrum is claiming the benefit of a promise made to Elwood, which was based on conditions to be performed by Elwood; and how can he recover unless those conditions have been performed? He is in no better position to enforce the contract derived through the promise to Elwood than Elwood himself would be." Among other cases applying these principles are the following: Hargadine-McKittrick Dry Goods Co. v. Swofford Dry Goods Donald, 75 Vt. 93, 53 Atl. 332; Crowell v. * entitled to any royalties from that company, and had not transferred any such to the realty company. Treating the representations made by Harris as having been made [2] 2. Inasmuch as the plaintiff could en- to the realty company, it is clear that he force only such rights as Harris could en- could not compel that company to pay monforce against the defendant, we may now ey as promised in the note at a specified consider what was Harris' right. In this time for the stock, when he had induced the connection, see Union City Realty & Trust company to take the stock subscription upon Co. v. Wright, 138 Ga. 703, 76 S. E. 35. This the representation that the stock was to leads to consideration of his subscription be paid for in another way, not involving contract for stock in the brick company, and the payment of money, and when he had the circumstances attending the sale thereof failed to comply with his contract in regard to the realty company. The contract with to the lease contract under which the royalthe realty company, as described by the ties were to be received. [3] 3. It was urged, however, that inasclause in the deed, was that Harris should convey his "subscription for four thousand much as Harris had subscribed for all the dollars ($4,000.00) of stock" in the brick stock of the realty company and all the company, for which the realty company stock was issued to him in payment for "agreed to pay according to my the property described in the deed, in mak[Harris'] contract." The contract also pur- ing the deed to the realty company he was, ported to convey "all the royalties derived in effect, dealing with himself, and his from a twenty [year] lease I hold from knowledge of the existence of the note and said brick company," which Harris agreed issuance of stock and nonexistence of the to transfer by indorsement. The purchase lease contract and royalties represented to price of all the property mentioned as the be payable thereunder would be imputed to consideration of the deed also entered into the corporation, and it could not resist paythe consideration moving Harris to make the ment of the note on account of such conditions. The representations were made to above transfers. There was extrinsic evidence to the effect that at the date of the proposed purchasers of interests in the propdeed to the realty company Harris had ex-erty, in contemplation of organizing the corecuted the note sued on and received a cer-poration to promote the enterprise. Instead tificate for 30 shares of stock of the par of taking deeds to the interests in the propvalue of $100 each, and that prior to execu-erty and paying therefor and joining in the tion of the note and issuance of the stock, conveyance to the corporation for stock issued to them, the persons who bought inwhile negotiating with prospective purchasers of the stock in the realty company, Har-terests equal to 51 per cent. of the property elected to let Harris convey all the property ris stated to them that he had a subscrip- to the corporation and receive all the stock tion contract for $4,000 of stock in the brick therefor and transfer to them 51 per cent. company, under which, without the payment The pro The of any money, he was to receive the stock in of stock in consideration of the purchase consideration of certain clay and certain roy-price which they paid to Harris. All this was carried out at the organization meetalties to be paid him by the brick company under a lease contract which he had made ing at which one of the purchasers became with the company, which contemplated the president and Harris vice president. establishment of a brick manufactory on the president accepted the deed for the corporation when it was delivered by Harris. The leased premises, and as a part of the proposed sale he would put in the subscription terested all the time: First, as purchasers purchasers, therefore, were substantially incontract and transfer the lease. spective purchaser agreed with Harris to under the executory contract; and, secondtake interest in all his holdings, including ly, as actual owners of the stock in the corporation; and their interests with respect to the representations made by Harris were opposed to that of Harris. Under the circumstances Harris' interest was opposed to that of the corporation, and his dealing with the corporation was with it as a distinct entity and at arm's length. The case falls within the principle of People's Bank v. Exchange Bank, 116 Ga. 820 (3), 828, 43 S. E. 269, 94 Am. St. Rep. 144, where it was held: "A corporation is not to be charged with notice of facts of which its president acquires knowledge while dealing in his private capacity and in his own behalf with third persons; nor to the corporation when, acting through another is knowledge on his part thus acquired imputable official, it deals with him at arm's length as with the stock subscription contract as represented by him, and to organize the realty company as a means of carrying out the enterprise. After such agreement Harris executed the note and received the stock as above mentioned, and shortly thereafter the realty company was organized and the deed executed by Harris to it, containing the clause with reference to stock subscription in the other corporation as before indicated, without disclosing to the other proposed purchasers of stock the facts of his having executed the note or received the 30 shares of stock. As a matter of fact Harris did not have such a lease contract with the brick |