public generally had a right to and could meet and transact any and all matters affecting the public generally." This amendment only states the conclusion of the pleader as to the intention of the doner, as he therein pleads the dedication by the express words of the plat, and makes same a part thereof. It seems to us that this conclusion is not warranted by the plat, which is the only evidence of the dedication. On this plat there are three squares set apart called respectively "Public Square," "SeminThe two latter are situated adjacent, with an alley only between. The public square was some squares away, and in seems to us that the only meaning that could be attached to the words "Meeting House Square" is that given to same in the original petition; i. e.,

his charity-this lot-should be occupied by the church of which he and family were members. This deed was duly recorded in the clerk's office of Mason County. The petition also alleges that afterwards the said town of East Maysville became a part of the city of Maysville, and was such part at the filing of said petition. The petition states that at the September term, 1891, the appellees Woods, Williams, and Hall, acting as trustees of the religious denomination known as the "Maysville Christian Church," by an ex parte pro-ary Square," and "Meeting House Square,' ceeding sought and obtained a decree of the circuit court of Mason county directing a sale of this lot known as "Meeting-House Square," and that under said decree the same was sold, and was bought by appellees Kackley and Trexel; that on the day of sale the said purchasers were notified of the fact that this ap-for religious purposes and with a view of pellant objected to the sale, and would contest the title of the purchaser; and that, on the report of sale being filed in said ex parte proceeding, this appellant appeared, and offered to file exceptions to the confirmation of the sale, but the court refused to permit same to be filed; and that appellant now brings this suit and asks that said sale be declared void, and that said lot of land be declared a dedication from said Samuel January to the use of the public to be used for the sole and only purpose of erecting thereon a house or houses of religious worship, which the petition alleges was the object and intention of said donor. The circuit court sustained a demurrer to this petition, and appellant, by leave, amended, and in the amendment the only change made is that it is alleged that said lot of land was by the said Samual January dedicated to the public for use as a place of public resort or meetings of any and all legal character, and that the appellant had expended large sums of money on the streets adjacent to said property in grading and beautifying same. To this amendment, and the petition as amended, the court sustained a demurrer, and, appellant declining to plead further, the petition was dismissed, and from that action of the court this appeal is prosecuted.

making it a place of religious instruction and worship." Now, this being the true meaning and intention of the donor in making the dedication, can the appellant, the city of Maysville, maintain this action? The question is not whether a lot may be dedicated for a church lot or for religious purposes-for it is now well settled that it can,-but whether a lot dedicated for religious or church purposes can be under the control of the municipal government, or whether the municipality can hold the title as trustee for the public so as to maintain an action for its preservation. In 2 Dill. Mun. Corp. § 573, the principle is stated, thus: "Municipal corporations cannot, for the same reasons applicable to ordinary corporations aggregate, hold lands in trust for any object or matter foreign to the purpose for which they are created, and in which they have no interest." To this principle we assent, and hold that municipal corporations cannot hold land in trust for religious purposes. It is clear that since the establishment of this government it has always been the intention of its citizens to entirely separate church and state. In all our constitutions such an intention is clearly expressed, and in the legal light of this history it is manifest that at no time was any municipal corporation ever organized in this state with The sole question to be determined on this any power or authority in matters affecting appeal is, Did the petition of appellant, or the religious worship. We have said that land same as amended, present a cause of action in may be dedicated for church or religious purappellant? If that question be determined in the poses, but in no event can this dedication be to affirmative, the judgment of the circuit court a municipal corporation as trustee. The duty should be reversed. In the amended petition of the corporation in regard to church property filed the only change made from the original or religious worship is to guarantee the citizen is the allegation that the city of Maysville had his property or religious rights, and the free enimproved the streets around this "Meeting-joyment of same. As the appellant, the city House Square," and the allegation that in the dedication made by Samuel January the said doner intended "that said dedication was made for public meeting purposes generally, and intended as a place of public resort, where the 39 L. R. A.

of Maysville, has no right of property in the lot in question,-all of which appears from the petition,-we are of opinion that the court did not err in sustaining the demurrers, and in dismissing the action, and the same is affirmed.

GEORGIA SUPREME COURT.

in which the mortgagor obtained possession of |ing to have been signed by McWilliams, which the mortgage and procured its cancelation on the records.

McGinn v. Tobey, 62 Mich. 252; Chandler v. White, 84 Ill. 435; Bigelow, Estoppel, 5th ed. pp. 657, 658; Meley v. Collins, 41 Cal. 663, 10 Am. Rep. 279.

Registration of a forged instrument or release has no effect on the title; even an innocent purchaser takes the risk of forgeries. Warvelle, Vendors, p. 536; Haight v. Vallet, 89 Cal. 245; Reck v. Clapp, 98 Pa. 581. Where a release of a mortgage is a forgery, an innocent purchaser buys subject to the mortgage.

D' Wolf v. Haydn, 24 Ill. 525; Lee v. Clark, 89 Mo. 553; Hagermann v. Sutton, 91 Mo. 533; Isaacs v. Skrainka, 95 Mo. 521; Smith v. Stark, 3 Colo. App. 453.

Cobb, J., delivered the opinion of the court:

An execution in favor of J. N. Clay, executor of the will of Polly McWilliams, deceased, issued upon the foreclosure of a mortgage executed by R. H. Knapp to Robert McWilliams, was levied upon a certain described lot in the city of Atlanta, and a claim thereto was interposed by Mrs. Sadie J. Luther. On the trial a verdict in favor of the plaintiff in execution was directed by the court. The claimant made a motion for a new trial upon various grounds, and, the same having been overruled, she filed her bill of exceptions, alleging the refusal to grant a new trial as

error.

had been entered upon the record on the 30th day of March, 1887. The entry of concelation upon the mortgage was a forgery. Mrs. Luther purchased a part of the land described in the mortgage to McWilliams for value after the filing of the forged cancelation with the clerk, and before Knapp ran away. The purchase was made without notice of the fraud perpetrated by Knapp in obtaining possession of the mortgage and causing a forged cancelation to be filed and entered on the record, and after an examination of the record, and upon the honest belief that the cancelation was authorized and genuine. On May 2, 1887, Robert McWilliams filed his petition in the ordinary form in the supreme court of Fulton county, praying for the foreclosure of the mortgage. A rule absolute was granted on March 31, 1888. In October, 1888, Robert McWilliams filed another petition for the foreclosure of the same mortgage. The petition, in addition to the usual recitals, contained the following: "Petitioner further shows that on or about the 24th day of March, 1887, the said R. H. Knapp fraudulently got possession of said mortgage, and entered upon its face a cancelation of the same, with authority to the clerk of the superior court of said county to make the record of said mortgage satisfied and settled; the same having been entered of record in Book 1, page 483, of the Records of Mortgages in said clerk's office aforesaid. Petitioner avers that he had no knowledge of said mortgage at the time it was canceled and delivered to the clerk aforesaid, being in the The facts, as they appear upon the trial hands of said R. H. Knapp; that the entry of of the case, are as follows: On January 2, settlement made thereon was not made or 1884, R. H. Knapp executed to Robert Mc- signed by petitioner, nor was it made or signed Williams a mortgage on certain land in the by his authority, or anyone authorized by city of Atlanta to secure the payment of a him, and that said entry of settlement and note of even date. The mortgage was duly cancelation on said mortgage is a forgery." recorded on February 25, 1884, and McWill-Pending the foreclosure an order was passed iams took the same to his home, inclosed in an envelop, and placed "it away among his papers or archives." In March, 1887, Knapp came to the house of McWilliams, who was a very old man (being nearly eighty years of age), and asked him whether the mortgage in question had ever been recorded, and requested that he be allowed to examine it, stating that he had made inquiry or examination at the record office, and had not found it. McWilliams took from his papers the envelop containing the mortgage, and handed it to Knapp, who received it, and was proceeding to examine, to see if the entry of recording was upon it, when McWilliams left Knapp for a few minutes. When he returned, Knapp handed him the envelop, stating that it was all right; and McWilliams, supposing that the mortgage was in it, placed it again among his papers, and did not examine it until some time afterwards, when Knapp had absconded. When McWilliams heard that Knapp had left the state, he went to his papers, to get the mortgage, and in the envelop which had contained the original he found only a copy. The only opportunity for the substitution of this copy was at the time above referred to. Upon investigation, the original mortgage was found on file in the clerk's office in Atlanta, and upon it was an entry of cancelation, purport

reciting the death of Robert McWilliams, leaving his wife, Polly McWilliams, as his sole heir; that she had paid all of his debts; and ordering her made party plaintiff in the case. Judgment of foreclosure was entered in the usual form, reciting the death of McWilliams and the making of parties. J. N. Clay, as executor of the will of Polly McWilliams, filed his petition to the superior court of Fulton county, reciting the first foreclosure of the mortgage above referred to, and that on November 7, 1894, after the death of Robert McWilliams, the clerk, by mistake, issued an execution upon such foreclosure. It was alleged that Polly McWilliams was the sole heir of Robert McWilliams, that she paid all of his debts, and that J. H. Clay was her executor. The prayer was that the execution issued in the name of Robert McWilliams be quashed, and that a new execution in favor of Clay, as executor of Polly McWilliams, be issued in lieu thereof. Service of this petition was not made upon the defendant or any other person. On December 21, 1894, in term, an order was passed quashing the execution and granting

leave to the petitioner to sue out a fi. fa, in his name as such executor." An execution was duly issued under this order.

1. The execution issued upon the second foreclosure above referred to was levied upon

the land embraced in the mortgage, and claims Company. This being the fact to be proved, thereto were filed by Mrs. Luther and other evidence that the corporation, through its counparties to different parcels of the lot. The sel, had treated the instrument as bearing the several claim cases were submitted to the judge corporate seal, and relied upon it as a deed of without the intervention of a jury. Upon the the corporation, was undoubtedly admissible. trial, claimants objected to the introduction of The defendant not only induced the the second foreclosure proceedings, and the plaintiff to bring this action, but defeated the execution issued thereon, on the ground that action in Cecil county court, by asserting and there had been a former foreclosure, and that maintaining this paper to be the deed of the the plaintiff had no right to proceed under the company; and this brings the defendant within second foreclosure until the first foreclosure the principle of the common law, that when a had been set aside. The court sustained the party asserts what he knows is false, or does objection, ruled out the evidence, and dismissed not know to be true, to another's loss, and his the levies. The plaintiff in fi. fa. acquiesced own gain, he is guilty of a fraud; a fraud in in this decision, which had been made against fact, if he knows it to be false, fraud in law him on the motion of the claimants, and pro- if he does not know it to be true." We are ceeded to have the execution upon the first clearly of the opinion that the defendant canforeclosure issued under the circumstances not be heard to say that what was asserted on above recited. When this execution was lev- a former trial was false, even if the assertion ied upon the mortgaged premises, claims were was made by mistake. If it was a mistake, of again interposed by the parties who were pur- which there is no evidence, it was one made chasers of the property. Upon the trial of the by the defendant, of which he took the benefit, case now under consideration, in which Mrs. and the plaintiff the loss, and it is too late to Luther was the claimant, objection was made correct it. to the introduction of the first foreclosure proceeding under which the levy in question was made, on the following grounds: First, because at the time of the foreclosure the original mortgage was not in the possession of the plaintiff, but was in the hands of the clerk of the court, marked "Canceled;" second, because the judgment of foreclosure was not made at the next term after that at which the rule nisi issued; third, because there was no legal service upon the mortgagor, in that he was not personally served, and there was no service by publication for four months next before the term at which said judgment was rendered. Under the view we take of the case, it is not necessary for these questions to be considered. Whether they would be well taken or not, if taken advantage of at the proper time, this claimant cannot now be beard to attack the regularity or validity of the first fore-closure. When this levy was made under the second foreclosure, it was upon motion of her counsel that such levy was held to be illegal, and dismissed. Having invoked a ruling from the court that the first foreclosure was valid, and this decision having been acquiesced in and acted upon by the party against whom it was made, she cannot be heard to attack the judgment which she obtained, and of which she took the benefit, although it may have been an erroneous one. In the case of Davis v. Wakelee, 156 U. S. 689, 39 L. ed. 584, where a question similar to the one under consideration was before the court, Mr. Justice Brown, in the opinion, says: "It may be laid down as a general proposition that, where a party as sumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him." In the case of Philadelphia, W. & B. R. Co. v. Howard, 54 U. S. 13 How. 336, 337, 14 L. ed. 169, 170, in delivering the opinion of the court, Mr. Justice Curtis says: The plaintiff was endeavoring to prove, that the paper declared on bore the corporate seal of the Wilmington & Susquehanna Railroad

2. When the first foreclosure was had, the clerk failed to issue an execution as required by law, and after the death of the plaintiff one was issued in his name. After the claimant had succeeded in obtaining a judgment of the court that the second foreclosure was invalid and the first foreclosure was valid, this execution, issued in the name of the deceased plaintiff, was, upon the ex parte application of the executor of the wife and sole heir of such plaintiff, quashed, and a new execution, in his name as executor, issued. No notice or service of this application was made upon the defendant in the judgment, or any other person. Certainly no one was entitled to notice except the defendant. Ought he to have been served? The issuing of an execution is a mere ministerial act, and, while it is not necessary to decide in this case whether an execution issued upon a judgment in favor of the plaintiff after his death is valid, still, if the legal representative of the owner of the judgment sees proper to have, by an order of court, an execution framed in accordance with the peculiar facts of the case at the time it is issued, we see no reason why notice should be given to the defendant of an intention to apply to the judge for an order to the clerk to do that which it would seem the clerk would have authority to do without such order. In any event, the claimant will not be heard to object to the execution on the ground that it was issued by the order of the judge without notice to the defendant, unless she alleged some valid reason why the judge should not have passed the order. No such reason appears in the present case. Civ. Code, SS 3354, 3355.

3. When parties to a case agree to submit the same for decision upon an agreed statement of facts, and nothing is said in the agreement to the contrary, each party is absolutely bound and concluded by the statements of fact thus agreed to, so far as the trial in which the stipulation is made is concerned. Where the agreement is not expressly limited to use in the trial in which it is made, it is admissible in evidence as an admission in any other trial or litigation between the same parties, where the same issues are involved; but it is not abso

lutely binding and conclusive upon the parties. | ferred or stolen should be restored to its rightWhen it is used against such parties in another trial of the same case, or in any other case, either party has the right to attack any statement of fact made therein either by disproving or rebutting the same or explaining it away. If parties enter into an agreed statement as to the facts in a case, and do not desire such statement to be used against them thereafter, they should distinctly stipulate to that effect. There being nothing in the agreed statement of facts which was introduced in this case to indicate that it was only intended to apply to the former litigation, the court did not err in allowing it to be introduced in evidence. Especially would this be no error in the present case, where there was no effort made to attack any statement of fact made therein, and the claimant's case absolutely depended upon facts set forth in the agreement.