paper sued on was not the paper executed; that the defendant was liable upon the paper in its original condition; but that the effect of the alteration was to change the time in which suit upon the paper could be brought. There was no effort to show want of liability under the paper as a consequence of the alteration. The sole purpose of the plea was to let in the defense of the statute of limitations, which always admits a past liability, and that there would be a present existing liability except for the lapse of time. If the words had been inserted by the holder with a fraudulent intent, this would have been a proper subject-matter of a plea seeking to vitiate the undertaking altogether; but this was not the defense relied upon.

There was

no error in refusing to strike the amendment to the plea, nor in directing a verdict for the defendant on the plea of the statute of limitations.

Judgment affirmed. All the Justices concur.

(127 Ga. 160)

STOKES v. STOKES. (Supreme Court of Georgia. Dec. 15, 1906.) 1. CONTINUANCE-GROUNDS-WANT OF PREP

ARATION.

Where counsel for the defendant in an application for temporary alimony entered upon the hearing of the case without objection, and after the plaintiff had closed her case and the defendant had submitted his answer and demurrer, the defendant being also present to testify in his own behalf, there was no error in refusing to grant a postponement in order to obtain and present an additional affidavit, on the ground that counsel had only been retained in the case the previous day, and had been prevented from making preparation on account of other work.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Continuance, § 14.]

2. DIVORCE-ALLOWANCE FOR COUNSEL FEES

-ORDER.

Upon the hearing of an application for temporary alimony, brought by a wife against her husband, the court may grant an order "allowing such temporary alimony, including expenses of litigation as the condition of the husband and the facts of the case may justify." Civ. Code 1895, § 2457. Attorney's fees thus granted being treated as part of the temporary alimony, where the petition for such temporary alimony alleged that the wife had been compelled to employ counsel to bring her petition for alimony and divorce, and prayed that the court award her such temporary and permanent alimony out of the earnings and estate of her husband, the court could allow counsel fees, although there was no separate prayer for them eo nomine.

3. APPEAL-RECORD-BILL OF EXCEPTIONS

AFFIDAVITS.

The bill of exceptions contains some of the evidence introduced on the hearing, and states that certain affidavits were also used. It does not set them out. In the record appear two affidavits, made, respectively, by the persons named as affiants. There is no reference to them in the petition, so as to indicate that they were attached as part of the pleadings; nor is there any brief of evidence or other proper certification to authorize them to be considered. In so far as the grounds of exception rest upon the sufficiency of the evidence, therefore, they cannot be considered.

(Syllabus by the Court.)

Error from Superior Court, Floyd County; Moses Wright, Judge.

Action by Angelina Stokes against William Stokes. From a judgment in favor of plainAffirmed. tiff, defendant brings error.

See 55 S. E. 1023.

Henry Walker, for plaintiff in error. Chas. E. Davis, for defendant in error.

LUMPKIN, J. Judgment affirmed. All the Justices concur.

(127 Ga. 206)

SEABOARD AIR LINE RY. v. HOOD. (Supreme Court of Georgia. Dec. 20, 1906.) NEGLIGENCE PETITION DILIGENCE OF PLAINTIFF.

The averments of the petition presented issues, relating to the negligence of the defendant and the diligence of the plaintiff, which were appropriate for determination by a jury, and it was not error to overrule a demurrer to the same.

(Syllabus by the Court.)

Error from Superior Court, Muscogee County; W. A. Little, Judge.

Action by G. M. Hood against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant brings error. Affirmed.

Goetchins & Chappell, for plaintiff in error. J. H. Martin, for defendant in error.

(Supreme Court of Georgia. Dec. 15, 1906.) EASEMENT WAY BY PRESCRIPTION PROVED LANDS.

*

IM

"Improved lands," in the sense in which the phrase is used in Civ. Code 1895, § 3065, which provides that "the right of private way from over another's land may arise prescription by seven years' uninterrupted use through improved lands, or twenty years' use over wild lands," comprehends the entire tract, though only part thereof be in actual cultivation. The woodland on such a tract is not wild land, but, in connection with that portion which is cultivated, constitutes a single tract of "improved land."

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Easements, §§ 27, 28, 32.] (Syllabus by the Court.)

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

Application by James Roach for an order directing Jacob Hopkins to show cause why he should not remove certain obstructions. Judgment for petitioner, and defendant brings certiorari. Judgment for plaintiff on certiorari, and defendant brings error. Affirmed.

R. J. & J. McCamy, for plaintiff in error. Shumate & Maddox and J. A. Longley, for defendant in error.

EVANS, J. James Roach applied to the ordinary for an order directing Jacob Hopkins to show cause why he should not remove certain obstructions placed by him in a private way to the use of which the plaintiff alleged he had a prescriptive right. At the hearing the ordinary passed an order commanding the defendant to remove the obstructions complained of within 48 hours, pursuant to the statute. To this judgment Hopkins sued out a writ of certiorari, complaining that the judgment was erroneous for the reasons (1) that the evidence showed that the land through which way ran was unimproved, and it had not been in use for 20 years, and (2) that this way was a settlement road, open to the public, in which the plaintiff had no private prescriptive right. In answer to the writ of certiorari the ordinary certified that after the evidence had closed he stated that the only point that appeared to be controverted was whether the land over which the road ran was, in a legal sense, "improved" land or "wild or unimproved" land, and a decision on this point would determine whether 7 years gave a prescriptive right to its use, or 20 years' uninterrupted use was necessary, and that if this was the point on which the case turned, he was ready to announce his decision without argument. Counsel for the defendant and the plaintiff agreed that this was the controlling point in the matter, and the ordinary then held that the land through which the road passed was not wild or unimproved land, and that the evidence showed that the plaintiff had a prescriptive right to its use. The ordinary's judgment was upheld by the superior court, and the bill of exceptions complains of the refusal to sustain the certiorari and order a new trial.

The plaintiff based his claim to the way upon the uninterrupted user of the way for the period of some 15 years. Civ. Code 1895,

3065, provides that "the right of private way over another's land may arise from prescription by seven years' uninterrupted use through improved lands, or twenty years' use over wild lands." The descriptive words, "wild lands," as used in this section, are employed in contradistinction to the words "improved lands." Watkins v. Country Club, 120 Ga. 45, 47 S. E. 538. If a tract of land is cultivated in part, and a road through the entire tract traversed both field and woodland, the woodland adjacent to the field is not to be treated as "wild" land. Kirkland v. Pitman, 122 Ga. 256, 50 S. E. 117. The land which the statute designates as "wild" is that which is located separate and apart from lands which are partly in cultivation. It is a segregated tract of land, remaining, as it were, in a state of nature, uninclosed, and with indicia pointing to use by the owner. The woodland of a plantation is not "wild land" simply because it is uninclosed, where it adjoins lands which are in cultivation and the woodland in its natural state is retained by

no

the owner either for plantation uses or because he prefers to defer the time for bringing it into cultivation. It is not "wild land," but, in connection with that portion which is cultivated, constitutes a single tract of “improved land." Hutchins v. Tenant, 73 Ga. 95. The record shows that the way in controversy traverses a 16-acre tract of land belonging to the defendant, and that it was laid out and in use at the time the plaintiff purchased a nearby farm in 1890. This 16acre tract does not adjoin the land upon which the defendant resides, but about eight years before the trial he cleared up this tract and put it in cultivation. The way was kept in repair and confined to a width of 15 feet by the plaintiff, and has been used by him since 1890. The testimony demanded a finding that the land through which the way passed was "improved" land, and that the plaintiff, after the land was wholly or in part cleared and put into cultivation by its owner, continued in the uninterrupted use of the way for a period of more than 7 years. The ordinary, therefore, properly adjudged that the obstructions placed therein by the defendant should be removed. There was no merit in the certiorari.

Judgment affirmed. All the Justices con

cur.

(127 Ga. 203)

JOINER v. STALLINGS. (Supreme Court of Georgia. Dec. 20, 1906.) 1. CHATTEL MORTGAGES-ASSIGNMENT-CONSTRUCTION.

Where an instrument to secure an indebtedness provided that the title to certain described horses should be and remain in the creditors until the note should be paid in full, and on this was indorsed a transfer in the following terms: "For value received we hereby sell, assign, and transfer to A. H. Joiner, together with all our rights, titles, liens, and interests thereto and therein, the within instrument, together with note attached thereto, without recourse"-this operated to pass the legal title to the horses, and not merely the title and interest which the creditors had in the instrument.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, §§ 456, 457.] 2. SAME EVIDENCE.

Under the ruling made in the foregoing note, the admission of the second transfer, distinctly specifying that the property also was intended to be conveyed, was immaterial. 3. TRIAL-NONSUIT.

The evidence was sufficient to make out a prima facie case, and the grant of a nonsuit was

(127 Ga. 155) LANG . YEARWOOD. (Supreme Court of Georgia. Dec. 15, 1906.) 1. APPEAL-REVIEW-RULINGS ON Demurrer.

It appearing from the record and bill of exceptions that the demurrer was heard before the trial, and that the trial was concluded more than 60 days before the bill of exceptions was tendered, and no exceptions pendente lite having been filed to the judgment overruling the demurrer, this court will not consider the assignment of error in the bill of exceptions upon the overruling of the demurrer.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2404, 2405.] 2. NEW TRIAL-RULING ON DEMURRER.

The overruling of a demurrer to a petition cannot properly be made the ground of a motion for new trial. Southern Railway Co. v. Cook, 32 S. E. 585, 106 Ga. 450.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, New Trial, § 27.]

3. APPEAL-REVIEW.

The evidence authorized the verdict, and the assignments of error on the excerpts from the charge and on the requests to charge were, in the light of the evidence, not well founded. 4. NEW TRIAL-NEWLY DISCOVERED EVI

DENCE.

The alleged newly discovered evidence was impeaching in its character, and the discretion of the judge in overruling the motion on this ground will not be interfered with.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 221-223.]

(Syllabus by the Court.)

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

Action by M. E. Yearwood against J. M. Lang. Judgment for plaintiff, and defendant brings error, and plaintiff assigns crosserror. Judgment affirmed, and cross-bill dismissed.

The petition prayed for injunction. The defendant demurred and answered. The demurrer was overruled before the trial, which occurred at the August term, 1905, of the superior court, and resulted in a verdict for the plaintiff. The motion for a new trial was presented on the 8th of September, 1905, and on the 16th of December the trial judge certified the bill of exceptions, and directed the clerk to make a transcript of record for transmission to this court. The record contains no exceptions pendente lite complaining of the order overruling the demurrer. A cross-bill of exceptions was filed to the ruling of the trial judge in overruling a motion made by the plaintiff to dismiss the defendant's motion for a new trial; but, under the view taken of the case, It is unnecessary to consider the question raised by it. The plaintiff's petition set forth that the sheriff was seeking to dispossess her of the land in dispute; that this was being done at the instance of the defendant, who had instituted proceedings for the land against one William Anderson, petitioner's father, "who had no right nor title to the land, but was only living on said land with petitioner"; that petitioner had paid for the land, held it in her own right,

56 S.E.-20

claiming adversely to the defendant, and had been in uninterrupted and peaceable possession of the same for more than eight years. The prayer was to enjoin the sheriff from further proceeding to dispossess petitioner. The defendant's answer put the plaintiff on proof as to her title and right to the possession of the property, and set forth a chain of title under which defendant claimed, alleging that he received from his immediate grantor a rent contract between such grantor as landlord and William Anderson, plaintiff's father, as tenant, covering the land in dispute, and that, when this contract expired, he instituted proceedings to eject said Anderson as a tenant holding over, and recovered a judgment against him for the premises in dispute; and charging that the present action by the plaintiff was merely for the purpose of defeating his rights under that judgment. On the trial the plaintiff testified that she bought the land in dispute in the year 1894 from Dock Mooney, paying him a bale of seed cotton therefor and receiving from him a deed; that this deed had never been recorded, but had been intrusted to her brother, and was probably destroyed when his house burned; that in January, 1895, she moved on the land, cleared 20 acres, built a house, and had remained on the land ever since, paying rent to po one; that her brother, John Anderson, also moved on in the year 1895, and remained as her tenant until 1902; that she was aware of no claim to the land by any other person at the time she procured her deed; that her father, William Anderson, merely lived on the place with her; that he had no right nor interest in it; that she knew of no rental contract he had made with any other party for the place. The defendant, on the other side, introduced his chain of titles to the land, consisting of a copy of a sheriff's deed to M. C. Hooper, dated in 1889, copy of deed from M. C. Hooper to L. B. Hooper, and deed from L. B. Hooper to himself, dated in 1900, explaining that copies of the first two deeds were introduced because the originals had been lost. He introduced also a rent contract between William Anderson and L. B. Hooper, as follows: "Georgia, Gordon County. We rent from L. B. Hooper the north half of lot of land number 303 the year 1900 for to keep the place in good repair" signed by William Anderson, by cross-mark, and witnessed. The execution of this contract was further proved by an eyewitness. A copy of the procedings to evict William Anderson as a tenant holding over, with judgment in favor of the defendant in the present case, was also introduced. On this evidence the jury found in favor of the plaintiff, and the defendant filed a motion for new trial on the following grounds: (1) The general grounds. (2) Error in overruling the demurrer. (3) Error to charge: "I charge you that the title of defendant is

defective, and that he could not prevail in this case, even if you find the deed or evidence of title of plaintiff did originate in fraud, unless you find that the plaintiff ratified or was benefited by the rental contract introduced by the defendant with William Anderson. • ##" (4) Error in refusing to charge: "I charge you that the plaintiff assumes the burden, and must recover, if at all, by the preponderance of the testimony." (5) Error in refusing to charge: "Possession to be the foundation of a prescription must be in the right of the possessor and not of another. It must not have originated in fraud. It must not only be public, continuous, peaceable, and uninterrupted, but it must be exclusive, and must be accompanied by a claim of right. Permissive possession cannot be the foundation of a prescription until an adverse claim and actual notice to the other party." (6) Error in refusing to charge: "If you find that the defendant or L. B. Hooper, under whom defendant claims title, provided defendant shows title from L. B. Hooper, had made or entered into a rental contract with William Anderson, and that under said contract said Anderson had been in possession of the land in dispute, then I charge you that the time which Anderson was in possession of said land under said contract would not be counted as part of the time when prescription would run in favor of plaintiff. If plaintiff was in possession and Anderson was in possession as defendant's tenant, then the possession of plaintiff during this time was not exclusive, and could not be counted in her favor." (7) Error in refusing to charge: "The plaintiff not contending that her deed or evidence of title was on record, or that defendant had notice of how much she claimed, I charge you that she could only recover so much as she was in actual possession of by cultivation or inclosure. She cannot recover any more than she was in actual possession of." The defendant set forth also grounds of newly discovered evidence to the following effect: (1) Affidavit of the grantor from whom plaintiff claims to have received her deed, to the effect that no such deed was ever made, and that affiant had never had any interest in the property in dispute. (2) Affidavit that the plaintiff had not moved on the land as early as she stated she had, and did not cultivate the same during the year 1896.

J. M. Lang, Cantrill & Ramsaur, and T. W. Skelly, for plaintiff in error. Starr & Erwin, for defendant in error.

ATKINSON, J. The first, second, and fourth headnotes need no elaboration. It must be kept in mind that this was not an action of ejectment, but a petition praying for an injunction to restrain the defendant from proceeding to have the sheriff dispossess the plaintiff under a judgment in favor of the defendant against another person alleged to

be his tenant, who, it is alleged, had held over after his term had expired. The plaintiff was not a party to this proceeding. If she was in possession, and did not claim under the defendant in the dispossessory warrant proceeding, and had no connection at all with his title or claim, she would not be bound by the judgment against him, and therefore could not be lawfully ousted of her possesssion by the sheriff. When a sheriff sells land under execution, he is authorized, in order to put the purchaser in possession, to dispossess the defendant, his heirs, tenants, or assigns since the judgment, but he has no authority to dispossess tenants claiming under an independent title. Civ. Code 1895, $8 5451, 5468. While, under the Civil Code of 1895, § 4817, the sheriff seems to be authorized in terms to dispossess only the tenant who holds over, by analogy it would seem that he would be authorized, not only to dispossess the tenant, but those claiming under him or connected with his title or claim, just as in cases of sale under execution, but he would not be justified in dispossessing one in possession not the tenant of the alleged landlord, not in the privity with him, nor in any way connected with the landlord or the tenant, but claiming unde an independent title. It is apparent from what has been said that the requests to charge, so far as they related to the law of prescription and the burden of proof in ejectment cases, would have been proper if this had been an action of ejectment, but were entirely inappropriate to a proceeding of the character now under consideration. It is also apparent that there was no error in the charge complained of. The judge told the jury that the title of the defendant was defective. This was correct. He showed neither a complete paper title nor possession for a period of time sufficient to raise a title by prescription; and the charge was appropriate to the case, and accurate so far as it stated to the jury that the plaintiff could not be dispossessed unless she was connected in some way with the transaction between the defendant and her father, which raised the relation of landlord and tenant between them. We see no reason for reversing the judgment.

Judgment affirmed. Cross-bill dismissed. All the Justices concur.

(127 Ga. 159)

MORRISON-TRAMMELL BRICK CO. v.

McWILLIAMS.

(Supreme Court of Georgia. Dec. 15, 1906.) 1. DAMAGES-BREACH OF CONTRACT-PLEADING RECOUPMENT.

The plea of recoupment set forth in paragraph 3 of the defendant's answer was not subject to general demurrer; nor was it subject to several of the grounds of special demurrer. It was subject to demurrer on the ground that it was not alleged when the contract was made, nor when fire was set to the kiln of brick, nor when the burning of the kiln was begun.

2. SAME.

The plea of recoupment set out in the fourth paragraph of the defendant's answer was not subject to general demurrer, but was subject to demurrer on the ground that it did not appear that the damages claimed were reasonably in contemplation of the parties when the contract was made, and that it did not allege when the contract was made, or the burning of the brick begun, or how much wood was necessary to burn the kiln.

3. PLEADING AMENDMENT-EFFECT OF RULING ON PLeading.

If a portion of a plea or answer is stricken upon a ruling made that it is without merit, this is res adjudicata, if an amendment setting up substantially the same defense is tendered at a later date. But, if such part of a plea or answer is stricken on special demurrer on the ground that the allegation is not sufficiently specific, this does not prevent the tendering of an amendment to the answer at a later date, setting up the defense with sufficient specification. Dolvin v. American Harrow Co., 54 S. E. 706, 125 Ga. 699.

RENDITION OF DECI

4. SAME DEMURRER
SION-NOTICE TO PARTY.

Where a demurrer was heard and the decision reserved, the court was not bound to notify plaintiff's counsel before rendering judgment. Ripley v. Eady, 32 S. E. 343, 106 Ga. 422.

5. PLEADING AMENDMENT.

The amendment tendered in the present case was subject to objection on the ground that it did not set out the date of the contract for the purchase of the wood or the time of the burning of the kiln in connection with which the wood was needed. It was, therefore, not error to reject it.

6. CONTRACTS-ACTION FOR BREACH-PLEADING RECOUPMENT.

Per Atkinson, J. I concur in the judgment in this case, but think that the plea of recoupment set fourth in the third paragraph of the answer and dealt with in the first headnote was subject to demurrer for the further reason that it did not sufficiently show that the damages claimed were in contemplation of both parties at the time of the making of the contract, under the rule stated in Georgia Railroad v. Hayden, 71 Ga. 518, 51 Am. Rep. 274. (Syllabus by the Court.)

that it "did not bequeath any land, did not convey any title to any land, and was therefore irrelevant." Held, that there was no error in overruling said objection and admitting the evidence. Under the language of the will quoted, the sons of the testator took a life estate in whatever land the testator died possessed and seized of, and their children took a remainder interest in the same.

2. WRIT OF ERROR-REVIEW-HARMLESS ERBOR-ADMISSION OF EVIDENCE.

The admission of the other evidence objected to, if error, was not hurtful to the defendant, because substantially the facts which were sought to be established by said evidence were admitted by defendant's pleadings.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4167.] 3. EJECTMENT-SET-OFF And CounterCLAIM— IMPROVEMENTS.

In a suit to recover land, the defendant, who has bona fide possession of such land under adverse claim of title, may plead as a set-off the value of all permanent improvements bona fide placed thereon by him.

[Ed. Note. For cases in point, see Cent. Dig. vol. 17, Ejectment, §§ 502-504.]

4. REMAINDERS SALE OF LIFE TENANT RATIFICATION.

If the life tenant, assuming to act as trustee for the remaindermen under a void order of the court, sold the fee and received the purchase money of the whole, and if he afterwards invested some of that purchase money in other lands, and the remaindermen, after their attainment of majority and not laboring under any disability, after the death of the life tenant, appropriated these other lands to their own use with knowledge of all the material facts, their so doing was a ratification of the sale and conveyance of their estate in remainder by the trustee, and they would be estopped from recovering from the purchaser their remainder interest.

5. WRIT OF ERROR-ASSIGNMENTS OF ERROREVIDENCE-PLEADING.

Assignments of error upon the admission of evidence will not be considered, unless the evidence is set out in such a manner that the question of its admissibility can be decided wthout reference to other parts of the record; nor will assignments of error in a bill of exceptions, upon the allowance of an amendment

Action between the Morrison-Trammell Brick Company and M. B. McWilliams. From the judgment, the brick company brings error. Affirmed.

Seaborn & Barry Wright, for plaintiff in error. W. S. McHenry and G. E. Maddox, for defendant in error.

LUMPKIN, J. Judgment affirmed. All the Justices concur.

(127 Ga. 170)

HICKS v. WEBB et al. (Supreme Court of Georgia. Dec. 17, 1906.) 1. WILLS-CONSTRUCTION-ESTATE CONVEYED -LIFE ESTATE.

Objection was made by the defendant to the introduction in evidence of an item in the will of plaintiff's ancestor, containing the following language: "I desire that all my negroes, as also other property, be appraised and equally divided among my sons, * and at their death to go to their children." The objection to said item was based on the ground

amendment is not set forth, either literally or in substance, nor attached as an exhibit, nor specified as material to a clear understanding of the errors complained of.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3010-3012.] (Syllabus by the Court.)

Error from Superior Court, Johnson County; H. C. Hammond, Judge.

Action by W. W. Webb and others against T. B. Hicks. From the judgment, defendant brings error. Reversed on main bill, and affirmed on cross bill, of exceptions.

This case has been to this court before. Webb v. Hicks, 117 Ga. 335, 43 S. E. 738. In addition to the very full statement of facts contained in the former report, it is only necessary to add here that, when the case went back to the superior court for a second trial, the defendant amended his plea in the following particulars: He had been in bona fide possession of the premises in dispute under a claim of title since 1880, and during said time had placed on said lands permanent improve