be discharging the obligation for the benefit of the payee who had transferred the same. If, therefore, a married woman could recover from the payee of the note, who had notice of the invalidity of her contract, an amount paid to him in satisfaction of the same, why should she not be allowed to recover from him the amount he has wrongfully compelled her to pay out for his benefit to another person? If Mrs. Crawford had, at the special instance and request of Jones, voluntarily paid a sum equal to the amount due on the note to a creditor of Jones, who had no notice of the invalidity of her contract, and Jones had then surrendered her note, under the principle of the cases above cited there would be no legal obstacle to her bringing suit against Jones for the amount paid out for his benefit. If this is true, does it not necessarily follow that, where she has been compelled to pay to a creditor of Jones, she would have a right to recover the amount thus extorted from her? Certainly would this be true when at the time the note was signed by her she attempted to sign in such a way that no liability would arise against her on the note in the hands of any one, but was prevented from doing so by the fraudulent statements made to her by Jones that he did not intend to use the note in any way whereby she would be held liable thereon, which was, in effect, an agreement that the note would never be negotiated. The subsequent negotiation of the note to an innocent purchaser, who, on account of the insolvency of the principal, compelled Mrs. Crawford to pay the amount due thereon, made complete a cause of action in her behalf against the payee, who had thus caused damage to her. The fraud in procuring and negotiating the note, followed by damage to the plaintiff on account of having to pay the same, made a cause of action against the defendant. Civ. Code, § 3813. In the case of Railroad Co. v. Kneeland (N. Y.) 24 N. E. 381, it appeared that Kneeland was president of the plaintiff company; but no salary was attached to his office, and the plaintiff had never agreed to pay him any salary. The other defendants were directors in the plaintiff company, and without authority passed a resolution authorizing the president to use the credit of the company by issuing and negotiating its notes to pay a salary of $25,000 which the directors had voted in his favor. The notes were issued, and some of them came into the hands of bona fide purchasers for value before maturity, and without notice of the purpose for which they were issued, or of the want of authority of the directors to pass the resolution above referred to. The suit was brought to compel the defendants to pay the plaintiff the amount of the notes issued by them, or for such part of them as it would be liable to pay. It was held that the action could be maintained; Vann, J., saying in the opinion: "These notes, as is here admitted, the plaintiff has become liable to pay in consequence of the fraudulent

conduct of those defendants. Thus, the dead pieces of paper were, to this extent, given life, and converted into contracts binding upon the company without its consent. We think that the cases relating to this subject rest upon the principle that a person who fraudulently places in circulation the negotiable instrument of another, whether made by him or by his apparent authority, and thereby renders him liable to pay the same to a bona fide purchaser, is guilty of a tort, ard in the absence of special circumstances diminishing its value, is presumptively liable to the injured party for the face value thereof." See, also, Nashville Lumber Co. v. Fourth Nat. Bank (Tenn. Sup.) 29 S. W. 368; Decker v. Mathews, 12 N. Y. 313; Smith v. Cuff, 6 Maule & S. 160; Horton v. Riley, 11 Mees. & W. 491; 2 Rand. Com. Paper, § 727.

It is contended, however, that it appears from the allegations in the petition that there is no liability, because the note was not negotiable, and therefore Mrs. Crawford could have successfully defended the suit thereon by a proper plea. The petition alleged that the note was payable to the order of the payee, which would make it negotiable by indorsement; but counsel for plaintiff in error contends that the stipulation in the note for the payment of attorney's fees renders the note nonnegotiable. It was held in Stapleton v. Banking Co., 95 Ga. 802, 23 S. E. 81, that "the fact that a promissory note payable to the order of a named payee contains a stipulation to pay 'all costs, and ten per cent. on amount for counsel fees, if placed in the hands of an attorney for suit,' does not destroy its character as a negotiable instrument." It is contended, however, that that decision will not control in the present case, because the note upon which Mrs. Crawford was sued was executed after the passage of the act of 1891, now embodied in Civ. Code, § 3667, providing that contracts to pay attorney's fees in notes or like instruments shall be void unless a plea or pleas be filed by the defendant and not sustained. The contract in the case cited authorized the collection of attorney's fees upon a condition,-that is, if the note was "placed in the hands of an attorney for suit," -and this condition was held not to destroy the negotiability of the note. The effect of the act referred to was to declare that contracts to pay attorney's fees in notes and like instruments should be collectible only upon the happening of one condition; that is, that a plea be filed by the defendant, and the same be not sustained. There is no difference in principle between this condition and the condition dealt with in the case cited, and for that reason the decision is controlling on the question now under consideration. The reasons which constrained the court in that case to hold that the note contained a promise to pay "a specific amount of money" are also applicable in the present case.

As against a general demurrer, the petition set forth a cause of action against the defend

ant, and there was no error in overruling such a demurrer. A demurrer of this character does not raise the question as to what would be the measure of damages in such a case, and whether or not the plaintiff would be entitled to recover the amounts she has expended or become liable for as attorney's fees by reason of the suit brought against her on the note, and in bringing the present action, is not now decided. Judgment affirmed. All the justices concurring.

(108 Ga. 763)

BLAKE et al. v. LOGAN. (Supreme Court of Georgia. April 21, 1899.) APPEAL HARMLESS ERROR-CLAIM CASE-AMENDMENT.

Even if, on the trial of a claim case, It was erroneous to allow the claimant to supplement the claim by filing an amendment reciting the pleadings and judgment in another case, a verdict sustaining the claim should not be set aside, when it appears that the evidence introduced by the plaintiff fully sustained such verdict, and also that the parties complaining of the allowance of the amendment themselves put in evidence the pleadings and judgment to which the amendment referred.

1. The description of the land intended to be mortgaged, and upon which the sheriff attempted to levy the mortgage execution, was, both in the mortgage itself and in the execution, too uncertain to identify the premises.

2. As the mortgage relied on by the plaintiff in fi. fa. was void for uncertainty, and the claimant, whose title was derived through the mortgagor, had an undoubted right to attack the mortgage as void because of such uncertainty, the court erred in directing a verdict for the plaintiff.

(Syllabus by the Court.)

Error from superior court, Hart county; S. Reese, Judge.

Action by Peter V. Rice against Robert M. Johnson, executor of Sarah A. Rice. Judg ment for plaintiff. On the levy of execution, Francis A. Osborne interposed a claim. Judgment for plaintiff, and claimant brings error. Reversed.

A. G. McCurry, for plaintiff in error. J. H. Skelton, J. N. Worley, and O. C. Brown, for defendant in error.

LUMPKIN, P. J. 1. Upon a mortgage fi. fa. in favor of Peter V. Rice against Robert M. Johnson, executor of the estate of Sarah A. Rice, defendant in execution, the sheriff made an entry purporting to show a levy upon land. A claim was interposed by Francis A. Osborne. On the trial of the issue thus formed the plaintiff tendered in evidence the mortgage upon which his execution was based, and also the execution itself, with the entry of levy thereon. These documents were objected to on the ground that neither the mortgage, nor the execution, nor the entry of levy sufficiently described the land sought to be subjected. The objection was overruled, and the papers were admitted. The description set forth in the mortgage was as follows: "All that tract or parcel of land situate, lying, and being in the county aforesaid, on the waters of South Beaverdam creek, adjoining lands of Peter Rice and Sarah A. Rice, to be run off the lower end of my tract of land, formerly owned by Robert Steel, containing ten acres; all of the remainder to be upland; in all, twenty acres, more or less." The mortgage execution undertook to describe the premises in substantially the same language. The entry of levy described the land sought to be seized as "one tract of land in 1113 Dist. G. M., of Hart Co., Ga., adjoining lands of P. V. Rice and Sarah Rice, to be run off of lower end of tract of land formerly owned by Robert Steel, containing (20) acres, ten bottom land, lying on South Beaverdam creek, & ten acres of upland." We are sure it would be impossible for the levying officer to locate the property either by the description contained in the mortgage or by that set forth in the execution. That he was in fact unable to identify the mortgaged premises is evidenced by the uncertainty and vagueness of his entry of levy. While this court has gone to a considerable length in holding descriptions of land in deeds, mortgages, and entries of levy sufficient when it appeared practicable to identify and locate the premises, we do not think it has ever gone to the extent of sanctioning as sufficient descriptions as loose and vague as those with which we are now dealing. It is indispensable in every case that the words employed in describing realty should be clear and distinct enough to enable a reasonably intelligent person to apply the description to the subject-matter. In the present instance we do not think even a most astute individual would be able to locate the property intended to be mortgaged. Certainly, the record of the mortgage now under consideration would not afford notice to any one of the premises upon which a lien was sought to be created. Our conclusion therefore is that the court erred in not rejecting the mortgage and the execution. Unquestionably, a claimant may, by a motion to dismiss the levy, take advantage of the fact that the judgment upon which the plaintiff in execution relies is a mere nullity, when this fact appears on the face of the record of the pro

ceedings upon which such judgment was rendered. Hines v. Kimball, 47 Ga. 588; Krutina v. Culpepper, 75 Ga. 602; Gazan v. Royce, 78 Ga. 512, 3 S. E. 753; Dixon v. Williams, 82 Ga. 108, 9 S. E. 468; Pulaski Co. v. Thompson, 83 Ga. 270, 9 S. E. 1065. Or, at his option, the claimant may urge his objection to the introduction in evidence of the record of such proceedings, or move to exclude the plaintiff's execution, if offered by itself, whenever it appears that the same is for any reason void, thus rendering it impossible for him to make out his case. Phillips v. Hyde, 45 Ga. 220; Williams v. Atwood, 52 Ga. 583; Freeman v. Binswanger, 57 Ga. 160; Bosworth v. Clark, 62 Ga. 286; Morton v. Gahona, 70 Ga. 569; Gazan v. Royce, just cited. As to whether or not one filing a claim is also at liberty to attack the entry of levy on the ground that it is void for uncertainty, the decisions of this court do not seem to be altogether harmonious. Cohen v. Broughton, 54 Ga. 296; Fambrough v. Amis, 58 Ga. 519; Oatis v. Brown, 59 Ga. 711; Scolly v. Butler, Id. 849; Zimmer v. Dansby, 65 Ga. 91; Crine v. Tifts, Id. 645; Gunn v. Jones, 67 Ga. 398; Pearce v. Renfroe, 68 Ga. 194; Hudspeth v. Scarborough, 69 Ga. 777; Smith v. Camp, 84 Ga. 117, 10 S. E. 539. Certain it is, however, that "a claimant has the right to show that the execution which is levied on the property claimed by him is void, or inoperative as a valid process." Smith v. Lockett, 73 Ga. 105, citing previous decisions. This is so irrespective of the question whether he is estopped from asserting that no lawful levy has been made, as was distinctly recognized in Pearce v. Renfroe, supra, wherein the rule was announced that "the interposition of a claim commits the claimant to the fact of the making of a levy, but not to the legality of the process under which it is made." Prior to the passage of the act of September 7, 1891 (Acts 1890-91, p. 76), while an execution which did not follow the judgment upon which it was founded might be "amended so as to conform" thereto, yet the law in terms provided that, "if such fi. fa. be levied at the time of the amendment, such levy must fall." Code 1882, § 3495. That act expressly repealed the clause last above quoted, and introduced in lieu thereof the provision that "such amendments shall in no manner affect the validity of the fieri facias, nor shall the levy of said fieri facias fall or be in any manner invalidated thereby." Civ. Code, § 5114. But it by no means follows from this change in the law that an execution which does not conform to the judgment upon which it was issued will, until duly amended, be admissible in evidence against a claimant who makes timely and proper objections to its introduction. In the case at bar it does not appear that, even were the plaintiff's execution amended so as to conform to the judgment of foreclosure, the obviously fatal defect in his execution would be cured. Presumably, it followed the terms of the judgment upon

which it was issued. But, however this may be, no offer to amend was in fact made, notwithstanding the execution was, upon its face, void for uncertainty.

2. The mortgage relied on by Rice, the plaintiff in execution, was dated August 2, 1880, and it was conceded at the trial that the mortgagor was the owner of the premises in question at the time this instrument was executed. The fi. fa. under which the sheriff attempted to make a levy was dated September 30, 1896, and purported to have been issued upon a judgment of foreclosure rendered on the 23d day of that month. Accordingly, in view of the fact that, notwithstanding the loose and insufficient description of the premises contained in the mortgage, a foreclosure thereof would be conclusive upon the defendant in execution if the judgment itself was sufficiently definite and specific to be capable of enforcement,-the contrary of which does not appear,-it is, perhaps, safe to say that the plaintiff made out a prima facie case. See, in this connection, Butt v. Maddox, 7 Ga. 495; Johnston v. Crawley, 22 Ga. 348; Gunn v. Jones, 67 Ga. 398; Morris v. Winkles, 88 Ga. 717, 15 S. E. 747; McCommons v. English, 100 Ga. 655, 28 S. E. 386. On the other hand, however, the claimant introduced evidence to show that on December 7, 1886, Sarah A. Rice, the mortgagor, executed and delivered to one Hammett a security deed covering the land in controversy; that he subsequently conveyed the same to the Western Security Company, and that on May 2, 1893, it executed a deed conveying the land to Johnson, as the executor of the estate of Mrs. Rice, the purpose of this last conveyance being to put the title to the premises in her legal representative, in order that the same might be levied on and sold in satisfaction of a judgment that company had obtained upon certain notes signed by her, and transferred to it by Hammett, to secure the payment of which she had executed and delivered to him the security deed first above mentioned. It was further shown that a sale of the land was regularly had under an execution issued upon this judgment, Osborne (the claimant) becoming the purchaser; and that on August 18, 1893, the sheriff made to him a deed to the premises. It will therefore be seen that Osborne holds directly under Mrs. Rice, the mortgagor; and accordingly it is his undoubted right to attack as invalid and inoperative the mortgage relied on by the plaintiff in execution. Morris v. Winkles, supra. Osborne did, it is true, take subject to that instrument; but, as has been seen, it was void for uncertainty, and really created no lien whatever upon the land sought to be mortgaged. In no sense was he bound by the judgment of foreclosure, not being a party thereto, and the title under which he claims not having been acquired pending the foreclosure proceeding instituted by the plaintiff in execution. On the contrary, it is now well settled that "one who purchases mortgaged property prior to

the commencement of statutory proceedings to foreclose, and who is not a party to such proceedings, is not bound by the judgment of foreclosure, and may, when the mortgage fi. fa. is levied, go behind the judgment, and set up that the mortgage" could not be legally enforced as against him, whenever this is necessary and proper to establish the claim of title upon which he relies. Williams v. Terrell, 54 Ga. 462, overruling Knowles v. Lawton, 18 Ga. 476, and citing approvingly McDougald v. Hall, 3 Kelly, 174; Jackson v. Stanford, 19 Ga. 14; Howard v. Gresham, 27 Ga. 347, and Baker v. Shephard, 30 Ga. 706. See, also, Johnston v. Crawley, 22 Ga. 348, 25 Ga. 316; Guerin v. Danforth, 45 Ga. 493. In view of the foregoing, it is apparent that the trial judge committed grave error in directing a verdict for the plaintiff in execution. Judgment reversed. All the justices concurring.

(107 Ga. 295)

CRONAN v. BURT. (Supreme Court of Georgia. April 21, 1899.) EXECUTION-CLAIM OF THIRD PERSON.

The verdict being without evidence to support it, the court erred in refusing to grant a new trial.

(Syllabus by the Court.)

Error from superior court, Dawson county; J. J. Kimsey, Judge.

Action by W. H. Burt against one Crain. Judgment for plaintiff. On levy of execution, Anna Cronan filed a claim. Judgment for plaintiff, and claimant brings error. Reversed.

H. L. Patterson, for plaintiff in error. A. W. Vandiviere, for defendant in error.

SIMMONS, C. J. A horse, buggy, and harness were levied upon as the property of Crain, and were claimed by his daughter, Mrs. Cronan. The record discloses that the claimant bought the property from her father, and paid for it, prior to the judgment and execution levied upon it. As far as appears, she paid full value for the property. No witness introduced testified to the contrary. The only evidence tending in any way to show that the claim was false was that to the effect that the horse was at times kept in the stables of the defendant, and that the defendant made certain admissions or declarations to the sheriff or his deputy concerning the horse when the officer went to make the levy. The keeping of the horse in defendant's stables was fully explained by the claimant and her witnesses, who testified that she had no stable of her own, and in bad weather sent the horse to her father's stables. No witness contradicted this. The declarations of the father to the levying officer were not made in the presence of the claimant, and the declarations thus made after he had parted with title and possession could not in any way bind the claimant. The remaining fact relied upon to sub

ject the property was that on the day of the levy the horse was missing from the defendant's stables; that the officer tracked the horse for some distance, and found it in the possession of the husband of the claimant, some distance from the public road,-the inference being that the husband was trying to conceal the horse. This was fully explained by the husband, who testified that he had ridden the horse to the mill, had ascertained that he could not get his grinding for some time, and had returned home, leaving the main road, and taking a short cut to his home, through the woods and pastures, where he was found by the officer, and the levy made. No witness contradicted this. Even if the husband was endeavoring to conceal the horse from the officer, that fact alone would not justify the inference that the horse was the property of the defendant. The levying officer,testifies that, when he levied upon the horse, the husband of the claimant stated to him that he had thought it would be better to get the horse out of the way than to stand a lawsuit about it. It is a common thing in the country, when a person buys property bona fide, and afterwards learns of the issue of an execution against it, to try to conceal it so as to prevent a levy. The fact of concealment is admissible as a circumstance, but is not, alone, sufficient to authorize a jury to find the property subject. The jury, by their verdict, found the property subject. The claimant made a motion for a new trial, which the trial judge overruled. The claimant excepted. While we are loath to interfere with the discretion of the trial judge in approving the verdict of a jury, still it is our duty, when there is no evidence to sustain the verdict, to remand the case for a new trial. A verdict which is supported by no evidence is contrary to law. Judgment reversed. All the justices concurring.

(107 Ga. 270)

BRUNSWICK HARDWARE CO. v. BINGНАМ.

(Supreme Court of Georgia. April 21, 1899.) AFFIDAVIT-ATTESTATION-SUFFICIENCY.

A paper purporting to be an affidavit, attested by a person as a notary public in another state, with nothing to authenticate his official character as such, should not be treated as an "affidavit" authorizing the proceedings prescribed by section 1902 of the Civil Code for perfecting service in certain cases against corporations.

(Syllabus by the Court.)

Error from superior court, Glynn county; J. L. Sweat, Judge.

Action by G. L. Bingham against the Brunswick Hardware Company. Judgment for plaintiff. Petition by defendant to set aside default denied, and defendant brings error. Reversed.

J. H. Martin, Geo. Bright, and Courtland Symmes, for plaintiff in error. Toomer & Reynolds, for defendant in error.

LITTLE. J. The Brunswick Hardware Company filed a motion in the superior court of Glynn county, in which it set out the facts:

That it was a corporation domiciled in said county. That George L. Bingham resided in the state of Michigan. That on the 13th day of August, 1896, Bingham filed in said court his action on a promissory note against petitioner to recover a judgment on a promissory note for the principal sum of $1,537.70, which was dated August 22, 1890, payable on demand. That the usual process was issued. That on this petition the sheriff made the following return: "The defendant corporation has no public place of doing business in the county of Glynn, nor has it in office, within my knowledge, any officer or agent upon whom service of this writ could be perfected. This 13th day of August, 1896." That after this return, on August 19, 1896, a paper was filed with the clerk of the court, as follows:

"State of Michigan, County of Wayne-ss.: In person appears George L. Bingham, who on oath says that he is the complainant at law in a certain suit upon a certain promissory note, now pending in the superior court of Glynn county, Georgia, against the Brunswick Hardware Company; that said defendant corporation has not, within deponent's knowledge, any public place for doing business, and has not, in office, any individual upon whom service of writs or processes may be perfected. [Signed] George L. Bingham.

"Sworn to and subscribed before the undersigned, this 15th day of August, A. D. 1896. Thomas Hislop, Notary Public, Wayne County, Michigan."

That, immediately subsequent to the filing of this paper, the clerk issued a citation directed to the defendant, the Brunswick Hardware Company, setting out the fact of the return of the sheriff and the filing of the affidavit above set out, and requiring the defendant to appear at the next term of the superior court of said county to answer. That this citation was published in a newspaper in the city of Brunswick on the 3d, 10th, 17th, and 24th days of November, 1896. That on the 19th of May, 1897, the judge presiding in Glynn superior court passed an order reciting the filing of the foregoing affidavit, the issuance of the citation, and its publication, and then adjudged that service of the declaration and process had been perfected upon the defendant in terms of law. That subsequently, at the May term, 1897, a judgment by default was taken against the defendant for the principal and interest of the note sued on. Movant further averred that it never received any notice or information of said cause, or of said judgment, until after the adjournment of the May term, 1897, of said superior court, and then moved the court to set aside said judgment because it was not served, that it did not appear and plead, that it had no notice of the cause or

The

the judgment rendered therein, and that the paper referred to as an affidavit as a basis for which the citation was ordered to issue was in law no affidavit, and did not authorize the issuing and publication of the citation, and therefore the judgment rendered on the 19th day of May was rendered erroneously. movant, by amendment, further alleged that it had a good and valid defense to the action, to wit: That the note sued on was fully paid off and discharged prior to the time the action was instituted, and that if it had been notified as provided by law, or served, it could and would have interposed and successfully prosecuted said defense; and alleges that it stands ready and offers now to plead to the same, if the judgment is set aside. The respondent demurred to the petition. It does not appear, however, from the record, that this demurrer was passed on by the court. Respondent also answered the petition, attaching a copy of the entire record, and denied every allegation of the petition, except those supported by the record. On the 28th of February, 1898, the judge of the superior court of Glynn county overruled the motion. The movant excepted.

It is provided, by section 1902 of the Civil Code, that where a corporation has no public place for doing business, or no individual in office upon whom service of writs, etc., may be perfected, the plaintiff may make an affidavit of such facts, and, on this being filed in the clerk's office of the court where the writ is made returnable, a citation may issue, and be published three weeks, and such publication shall be held a service upon such corporation for all purposes. The paper alleged to be an affidavit substantially met the requirements of the statute, and the only question which arises is whether that paper was such a legal affidavit as would furnish the basis for a citation to issue. It is ordinarily necessary that the defendant should be served with process either personally, or by leaving a copy at his place of abode, so that he may have an opportunity to answer the complaint made against him, and have the merit, not only of the complaint, but of his defense as well, passed on by the court, and ordinarily judgments without such service are void and without binding force. Corporations are served with process, ordinarily, by delivering a copy to some officer designated by the statute. Where, however, a corporation has no place of doing business, and there is no known person on whom service of process may be perfected, some method ought, in justice to creditors, to be devised by which persons who hold de mands against it may have their rights enforced by a judgment. It is for these reasons that the statute provides a method for reaching such defendants. In order, however, to accomplish the purpose and render service by publication valid, the provision of the statute must be fully complied with. As a basis, the plaintiff must make an affidavit that the corporation has no public place of doing business,