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to allow the amendment, and rejected evidence offered in support of it. The court, on motion of the defendant, directed a verdict in her favor.

Error is assigned by the plaintiff as follows: "(1) The court erred in admitting the will of John Neal over the objection of the plaintiffs that it was irrelevant under the pleadings. This was error because the will did not mention the property in dispute, and the evidence showed that Neal was never in possession of the property. (2) The court erred in admitting in evidence, over plaintiff's objection, the deed from Zebidee Cargile to Neal, the objection being that it was not shown that the defendant claimed under it. (3) The court erred in admitting in evidence the deed signed by "T. B. Neal, Exer.,' and others, conveying said land to Key, over the following objections urged by plaintiffs: (a) It did not appear that any order of the court had been obtained authorizing the sale of the property therein described. (b) It did not appear that said property had been advertised for sale as required by law. (c) It appeared on the face of the deed that the sale did not take place between the legal hours of sale on the first Tuesday in the month. (d) It was not recited in said deed that the grantors were acting in their representative capacity. (e) It did not appear that the executors of Neal were in possession of the property. (f) It was irrelevant under the pleadings. (g) It did not recite that it was executed in pursuance of authority granted in the will of John Neal. (4) That the court erred in admitting the instrument signed by John C. Key on April 16, 1891, over the following objections of plaintiffs: (a) The instrument was testamentary in character, and had never been proven as a will. (b) It did not purport a consideration, either good or valuable. (c) It did not purport to have been delivered, and there was no proof of delivery. (d) All of it was in one paragraph, which contained inconsistent clauses. (e) It was irrelevant and immaterial under the pleadings. (f) It was a voluntary conveyance, and, having been recorded after the record of a deed to the plaintiffs, founded upon a valuable consideration, could not be used to defeat plaintiffs' recovery, unless it could be shown that they took their conveyance with notice of the existence of said voluntary conveyance. (5) The court erred in disallowing plaintiff's amendment, as stated above. (6) The court erred in rejecting the following testimony of E. H. Thornton, offered by the plaintiffs: 'I am one of the executors of John Neal. Neither John Neal nor his executors were ever in possession of the land in dispute. The deed from Zebidee Cargile to Neal was a deed to secure a debt, the amount of which is mentioned in the deed.' (7) The court erred in directing a verdict for the defendant."

Felder & Rountree, J. E. & L. F. McClelland, and J. D. Kilpatrick, for plaintiffs in error. T. J. Ripley, for defendant in error.

BECK, J. (after stating the facts). 1. The amendment to the petition, tendered by the plaintiffs, and which is set out in the statement of facts, was properly disallowed by the court. Even if it be treated as sufficiently setting forth a case which made an accounting proper, and if it be a valid tender, the result of the amendment, if it had been allowed and proved, and full effect given to it, would have been to require of the court the rendition of a decree adjudging a deed, absolute on its face, to be merely a deed to secure a debt; but the person who had purchased the property included in the alleged security deed had treated the same as an absolute deed of conveyance, and had himself executed a deed conveying a life interest in the property to the the defendant, and a remainder interest to a minor child of the latter, and this child was directly interested in the issue as to whether or not the deed was of the character which the plaintiffs sought to have impressed upon it, and was a necessary party to any action instituted with the purpose of accomplishing the end towards which the amendment tends. While there is no prayer for a reformation of the deed from Cargile to Neal, the consequences of having the instrument adjudged to be a mere deed to secure the payment of a debt would be the same in effect as a reformation of the same. Such a change in the character of the deed, as it appears on its face to be, is one which would vitally affect property rights of the defendant's child in whom is vested a remainder interest, as it does the defendant herself. As was said by the court in the case of Wyche v. Green, 32 Ga. 341: "The rule is that all persons having a legal or equitable interest in the subject-matter of the suit must be made parties.

It is

manifest that the parties now sought to be brought in are directly and materially interested in the subject-matter of the suit. No court of equity should undertake to reform a written instrument conveying title to property, in an essential matter, without having before it all the parties to be affected by the proposed reformation." See, also, Brown v. Brown, 97 Ga. 531, 25 S. E. 353, 33 L. R. A. 816.

2-5. What is said above in connection with the headnotes, disposes of all material issues in the case.

Judgment affirmed. All the Justices concur, except FISH, C. J., absent.

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auditor has disregarded the order in reference to the time in which the report shall be made must be urged by an exception raising that question, or by an independent motion to disregard the report, filed within 20 days from the date that the report is filed.

2. SAME.

The case of Peavy v. McDonald, 47 S. E 203, 119 Ga. 865, distinguished.

(Syllabus by the Court.)

Error from Superior Court, Decatur County; W. M. Harrell, Judge.

Action by John E. Donalson against John E. Fain and others. Judgment for defendants, and plaintiff brings error. Reversed.

Jno. E. Donalson and Powell & Pottle, for plaintiff in error. B. B. Bower, Albert H. Russell, and Byron Bower, for defendants in

error.

COBB, P. J. This was an equity case, which was referred to an auditor. The time for the auditor to make his report was extended by various orders; the final order of extension providing that the report should be filed 30 days before the next ensuing term of court. The report was filed on October 17, 1900, and the next term of court convened on Tuesday after the second Monday in November following. On October 20, 1900, the defendant filed various exceptions to the report. The case was continued from time to time, and came on for a final hearing during term on January 6, 1906. The plaintiff moved that all the exceptions be stricken, as being insufficient in law, and that a final judgment be entered in accordance with the report of the auditor. The court declined to pass upon the sufficiency of the exceptions, and overruled the motion of the plaintiff to enter final judgment on the report of the auditor, "solely upon the ground that it appeared from the record in the case that the report of the auditor was a nullity"; the same not being filed within the time fixed by the order above referred to. To this ruling the plaintiff excepted. Under this assignment of error the only question presented for determination is whether the court erred in disregarding the report of the auditor altogether and treating the same as a nullity.

In the case of Peavy v. McDonald, 119 Ga. 865, 47 S. E. 203, the statement is made in the headnotes that the failure of an auditor to file his report within the time limited by the order of the court appointing him deprives him of all jurisdiction of the case, and that a report thereafter filed is a nullity. An examination of the original record in that case discloses that the objection to the auditor's report, on the ground that it was not filed in due time, was urged by an exception filed within 20 days after the report of the auditor was filed. Hence the only question presented in that case was whether an auditor's report, not filed in the time fixed by the order of the court, was good as against an exception duly filed raising that objection.

The failure to file the report in time is certainly an irregularity, and may be taken advantage of either by an exception or an independent motion. Whether the objection filed in that case be treated as an exception pure and simple, or as a motion to disregard the report, it was filed within 20 days after the report was filed, and hence it was not necessary for the court to determine anything else than the simple question as to whether such an irregularity, taken advantage of by an objection filed within 20 days, would prevent the court, from considering the report. The language, therefore, in the headnotes in the case above referred to, was broader than was required by the question raised by the assignment of error, and that case must be limited as a precedent to the exact question which was then presented. The decision is binding authority only so far as it holds that, when the report of an auditor is not filed within the time fixed by the order of court, the report cannot be considered, over an objection filed within 20 days raising the question that the report was not filed in due time. All else in the headnotes must be considered as mere obiter.

In Hart v. Manson, 120 Ga. 481, 47 S. E. 929, it was distinctly held that, when the report of an auditor is filed after the time provided by the order of the court the remedy of the party objecting is to file exceptions in due time after the report is filed. It was therefore held that it was too late, after the superior court had entered a judgment upon the auditor's report and that judgment had been affirmed by this court, to raise the question of the jurisdiction of the auditor to file his report after the time allowed by the order. The case of Peavy v. McDonald is cited in that decision, and what is said in the later case may be, with some propriety, considered as an interpretation of the ruling in the older case. In any event we do not think that there is such an authoritative ruling in Peavy v. McDonald as would constrain us to hold that the failure of an auditor to file his report at the time fixed by the order of court deprives the court of all jurisdiction of the subject-matter and renders the report a nullity. An auditor is an officer of the the court, and the court may fix the time in which he shall make his report. If he does not make it in time, the parties may, by exceptions filed in due time, raise the objection and have the case recommitted; but the failure to raise a timely objection urging delinquency on the part of the auditor would amount to a waiver of this irregularity, and authorize the court to treat the report of the auditor as properly before it. Hence, when an auditor's report has been filed, and no objection on the ground that it was not filed in due time is made until four years after it has been filed in the clerk's office, it is erroneous for the court to disregard the report of the auditor and treat it as a nullity. See, in this connection, Littleton v. Patton, 112 Ga. 438, 37

S. E. 755 (5); Fleetwood v. Bibb, 113 Ga. 619, 38 S. E. 980 (3).

Judgment reversed. All the Justices concur, except FISH, C. J., absent.

(127 Ga. 685)

POHLMAN v. FAIN. (Supreme Court of Georgia. Feb. 16, 1907.) REFERENCE-AUDITOR'S REPORT.

This case is controlled by the ruling this day made in Donalson v. Fain, 56 S. E. 1023, 127 Ga.

(Syllabus by the Court.)

Error from Superior Court, Decatur County; W. M. Harrell, Judge.

Action between H. F. Pohlman and John E. Fain. From the judgment, Pohlman brings error. Reversed.

John E. Donalson, E. M. Donalson, and Powell & Pottle, for plaintiff in error. B. B. Bower, Albert H. Russell and Byron Bower, for defendant in error.

COBB, P. J. Judgment reversed. All the Justices concur, except Fish, C. J., absent.

(127 Ga. 679)

BRIDGES v. BARBREE.

(Supreme Court of Georgia. Feb. 27, 1907.)

1. EXECUTORS AND ADMINISTRATORS-ALLOWANCE TO WIDOW-TITLE TO REALTY.

Where lands belonging to the estate of a decedent are duly set apart as a year's support to his widow and minor child, while the title to the same vests in such widow and minor, the widow may sell and convey such lands in fee simple for the purpose of deriving from the proceeds a support for herself and the child.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22. Executors and Administrators, §§ 661665, 724.1

2. SAME-Sale of LanD-RIGHTS OF WIDOW. If the child becomes of age, marries, and removes from such lands, the widow can sell and convey the same for the purpose of raising funds for her own support and maintenance; and her right to do so would not be affected by the fact that she had married again.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22. Executors and Administrators, §§ 661665, 702, 724.1

3. SAME-RIGHT TO PARTITION.

After the marriage of said minor and her removal from the premises so set apart she would not have a right to demand, as a tenant in common with her mother, a partition of said lands.

4. CANCELLATION OF INSTRUMENTS-FRAUDTENDER OF CONSIDERATION.

Even if the deed which the defendant in error sought to have canceled or annulled, and the execution of which she contends was procured by fraud, by its terms conveys to the grantee, the plaintiff in error, rights and equities in the premises in dispute, a court of equity will not decree the cancellation or annulling of such conveyance, where it appears from the petition that the complainant had in hand money which had been paid to or deposited with her by the grantee, and the repayment of which, or an offer to repay or return, so as to make a valid tender, is nowhere alleged.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Cancellation of Instruments, §§ 33-38, 73.]

(Syllabus by the Court.) 56 S.E.-65

Error from Superior Court, Decatur County; W. N. Spence, Judge.

Action by Hattie Barbree against R. L. Z. Bridges and another. Judgment for plaintiff, and defendant Bridges brings error. Reversed.

Hattie Barbree filed her petition against the defendants, Bridges and Goodson, and alleged in substance that a year's support, consisting in part of a certain tract of land, had been duly set apart out of the estate of petitioner's deceased father to the widow of said deceased and petitioner, then a minor child, "thereby vesting the title to said lot Jointly in petitioner and Elizabeth Barber, widow"; that petitioner is now of lawful age and married, and the said Elizabeth Barber has since remarried and is now Elizabeth Goodson (one of the defendants); that the defendant Bridges induced petitioner to sign a deed to said land, stating that he had bought the interest of Elizabeth Goodson, and "protesting to her that her signature was needed as a mere formality, and that as soon as titles were perfected he would reconvey her interest in said lot back to her"; that the paper which petitioner signed was a blank form, and contained no consideration, stipulations, nor description of any property; that, after obtaining plaintiff's signature, defendant Bridges filled in the blank form, making it a deed conveying the title to said tract of land, and procured the signature of Elizabeth Goodson and Ollie Mock thereto; that petitioner received no consideration for signing said deed; that said Bridges deposited with her his check for $240, and told her that if he failed to make title back to her he would forfeit the money; that "on several occasions petitioner has demanded of the said Bridges that he convey back to her title to her interest in said property, which the said Bridges has failed and refused to do, petitioner agreeing to return to him the deposit of $240." The petition alleges fraud on the part of the defendant Bridges, and prays that said deed "be canceled and decreed null and void," and "that said land be partitioned between petitioner and Elizabeth Goodson." And by amendment petitioner alleges: "At some time subsequent to the signing of said fraudulent deed * the said Bridges took possession of her one-half interest in said lands and now holds the same, and refuses to reconvey same to her in accordance with his promise so to do. * * * If the conveyance from Elizabeth Goodson (to Bridges) conveys good title to the interest of the said Goodson to the said Bridges, then as a matter of fact the said Bridges is the owner of the half interest of the said Goodson, and is tenant in common with petitioner, instead of Elizabeth Goodson." And plaintiff amends her prayer by praying that said deed be decreed null and void as to the half interest of plaintiff, and that the word "canceled" be stricken from said prayer. This amendment was allowed, over the objection of the

defendant that "it set up a new and distinct cause or action." The defendant filed a general demurrer to plaintiff's petition, which demurrer was overruled by the court. Whereupon the defendant excepted, and assigns error on the judgment of the court allowing plaintiff's said amendment, and overruling defendant's said demurrer, and assigns said judgments as errors.

Russell & Hawes, for plaintiff in error. R. G. Hartsfield and W. M. Harrell, for defendant in error.

BECK, J. (after stating the facts). 1-3. The principles stated in the first three headnotes are established law. They are merely a restatement of decisions by this court in cases where the issues were the same as those presented by the record in the present case. It is not alleged in the petition that the widow, who had remarried, proposed or intended to use the proceeds arising from the sale of the lands for any purposes other than those contemplated by the statute creating the right to a year's support for the family of a decedent; and in the absence of such an allegation there is no presumption that any improper or illegal use was intended or proposed. In the case of Vandigrift v. Potts, 72 Ga. 665, it was made affirmatively to appear that the land which had been set apart as a year's support for the widow and minor child was sold by the former after her second marriage, and the proceeds invested in other lands, the title to the latter being taken in the name of the second husband and his wife, and it was held in that case that "the sale was not good"; but it was not held in the Vandigrift Case, nor in any other case, that, even after she marries again, the widow may not sell the property set apart, in order to derive from it means of support and maintenance. In the case of Swain v. Stewart, 98 Ga. 366, 25 S. E. 831, it was decided that: "The right to a year's support being a vested right to her as an individual, her second marriage would not deprive her of this right. 'Whenever a right by law has attached by reason of widowhood, there must be some law by which it is divested, or it will remain.'" In that case the sale was made by the widow after her second marriage, partly to raise money to pay a fine, so as to obtain her discharge from custody, and partly in consideration of supplies furnished for herself and child; and it was held that the sale was lawful and passed a good title to the purchaser. In the case of Miller v. Miller, 105 Ga. 305, 31 S. E. 186, it was said by Chief Justice Simmons, who delivered the opinion: "If the year's support was set aside to the widow and child jointly, the widow is entitled to use and control it as long as the money lasts, or as long as she lives, even though the child marry or become of age. The child in such case cannot force a division of the property so set apart."

See, also, Boozer v. Nash, 120 Ga. 406, 47 S. E. 908, and citations.

4. Whether or not the plaintiff in the present case, having become of age and married after the setting apart of the year's support, still had rights and equities in the land embraced in the year's support, it is not necessary to decide here. Even if her rights and equities were affected by the deed which she seeks to have canceled on the ground that its execution was procured by fraud, she has not put herself in a position entitling her to a decree annulling that instrument. Before she could be entitled to such a decree in a court of equity, she must tender or offer to repay the money which had been paid to her or deposited with her by the grantee in that deed, and no tender or offer to repay is pleaded. Certainly the mere recital in the petition of petitioner's "agreeing to return to him [the defendant] the deposit of $240 made by said Bridges" cannot be treated as an allegation of a valid tender. Miller v. Cotten, 5 Ga. 341.

Judgment reversed. All the Justices concur, except FISH, C. J., absent.

(127 Ga. 778)

JENNINGS v. STRIPLING. (Supreme Court of Georgia. March 1, 1907.) 1. JUSTICES OF THE PEACE - JURISDICTION — AMOUNT IN CONTROVERSY.

A summons in a justice's court required the defendant to appear and "answer the demand of B. H. Stripling in an action for damages for breach of contract in the sum of $100." Attached to the summons was a statement of the alleged cause of action, in which $100 was set forth as damages for the breach of a contract. Following this was an itemized statement showing damages in different amounts, resulting from various causes; the aggregate amount being $132.50. Following this statement were these words: "To amount written off and unclaimed, to bring case within J. P. jurisdiction, $32.50." Held, that the suit was within the jurisprudence of the justice's court. (Atkinson, J., dissenting.)

[Ed. Note.-For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, §§ 170, 171, 329.] 2. SAME STATEMENT-CONTRACT-ACTION FOR BREACH EVIDENCE.

The cause of action attached to the summons was one arising ex contractu. It sufficiently put the defendant on notice as to what was the demand he was called upon to answer. and, under the liberal rules followed in justices' courts, there was no error in overruling the demurrer to such cause of action.

[Ed. Note. For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, §§ 307-323.] 3. EVIDENCE-OPINION EVIDENCE-WEIGHT.

Jurors, in passing upon the testimony of witnesses who are called to give their opinion as to the value of services, are not absolutely bound by such opinion, but may exercise their own judgment, taking into consideration the nature of the service, the time required to perform it, and all the attendant circumstances. [Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2392–2400; vol. 46, Trial, § 739.]

4. TRIAL-DIRECTING VERDICT.

There being, under the evidence, matters properly for the determination of the jury, the court erred in directing a verdict.

(Syllabus by the Court.)

Error from Superior Court, Worth County; W. N. Spence, Judge.

Action by B. H. Stripling against J. T. Jennings. Judgment for plaintiff. Defendant brings error. Reversed.

Stripling sued Jennings in a justice's court. The summons cited the defendant "to answer the demand of B. H. Stripling in an action for damages for breach of contract in the sum of $100." The cause of action attached to the summons was as follows:

Warrior, Ga., December 21, 1903.

J. T. Jennings Dr. to B. H. Stripling. To damages for breach of contract which was verbally made, but was substantially as follows: $100.00. On January 31, 1903, J. T. Jennings, the defendant in this case, agreed and contracted to furnish to B. H. Stripling, the plaintiff, twenty-five acres of land, stock, and farm implements of necessity for making a crop thereon, and half the guano to be used in making said crop, and all the cotton seed to be used in fertilizing said Stripling's corn, and the house for said Stripling and family to live in while making the crop during the year 1903. In consideration of the above promise, said B. H. Stripling agreed and contracted to furnish the labor for making said crop, and half the guano to be thus used. Said crop was to be made on the place known as the John Robert's place, in the 1,576th district, G. M., Worth county, and on the west side of Isabella and Nashville Roads. It was agreed and understood, as a part of this contract, that said J. T. Jennings should have all the cotton seed and half of everything else made of said crop except potatoes and what was made in the garden, and that said B. H. Stripling should have all the potatoes and all made in his garden and half of everything else made except cotton seed. The crop was to consist of about ten acres of corn, about fourteen acres of cotton, and one acre of potatoes. Immediately after the above contract was made, plaintiff moved to said place and began performance of his part of the contract, and continued thereat until April 1, 1903, when defendant broke the contract and drove plaintiff off the place, without any just cause whatever for so doing. Plaintiff claims actual damages as follows:

To cost of moving to place contracted for

....

To two months labor on said place, viz., February and March, at $18.00

To cost of moving away from place.. To expense of later seeking other employment, April 1st to 23d, lost time and traveling expenses. To house rent since April 1, 1903, at $2.50 per month....

.$ 2.00

36 00 2 00

20 00

22 50

To money borrowed from Bank of

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ages being the rental value of 35 acres of land at $2 per acre, to wit, $70, for which defendant prayed a judgment against the plaintiff. The case was carried, by appeal, to the superior court. On the trial in the superior court a plea to the jurisdiction, which appears to have been filed in the justice's court, was insisted on. This plea set

up that the justice's court had no jurisdiction, for the reason that the suit was for more than $100, and for the additional reason that the cause of action set forth was not one arising ex contractu, nor for injury to personal property. The judge struck this plea as insufficient in law, and error is assigned on this ruling. Before this plea was stricken, an amendment to the cause of action was allowed, which struck therefrom the item of $22.50 for house rent, and the item of $50 borrowed from the Bank of Tifton. The defendant then insisted on a demurrer, which appears also to have been filed in the justice's court. In this demurrer it was set up that no cause of action was set forth; that no bill of particulars was attached to the summons; that the cause of action contained a misjoinder, in that damages were prayed both for a violation of a contract and for a tort; that the manner in which the defendant broke his contract and in which the plaintiff was damaged was not set forth; that the last three items in the bill of particulars, aggregating $92, were not itemized, and it was not alleged how the defendant became liable for the two months' labor claimed in the item of $36; that it was not shown why the defendant was liable to the plaintiff in any of the items set out in the plaintiff's suit; that the amount set out in the cause of action was more than $100, and the justice's court had no jurisdiction of the suit; that the suit was not an action ex contractu, nor for injury done to personal property; and that the alleged contract is unilateral. This demurrer was overruled, and the defendant assigns error upon this ruling. The case proceeded to trial, and at the conclusion of the evidence the court directed a verdict for the plaintiff in the sum of $54, and error is assigned thereon.

Payton & Hay, for plaintiff in error. L D. Passmore, for defendant in error.

COBB, P. J. (after stating the facts). 1. When there is no law, in terms, regulating the matter, whether a creditor whose demand is created by express contract, such as a promissory note, can voluntarily abandon a part of his claim, or enter a credit upon it for the express purpose of reducing it within the jurisdiction of a given court, is a question upon which the authorities differ. See the numerous authorities cited in the opinion of Mr. Chief Justice Bleckley, in Stewart v. Thompson, 85 Ga. 831, 11 S. E. 1030. Attention is called by the learned chief justice to the case of Cox v. Stanton, 58 Ga. 406, as a

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