LITTLE, J. R. N. & B. C. Holtzclaw rented certain lands to Elisha Houser for the year 1895. During that year they furnished him with supplies with which to make the crop. At some time during the year, Elisha Houser turned over to the Holtzclaws cotton sufficient to pay the rent and part of the account for supplies, or enough to pay for all the supplies and part of the rent. With the consent and approval of Elisha Houser, they applied the cotton, or proceeds thereof, first to the payment of the account for supplies, and the balance was credited on the rent. The remainder of the rent not being paid, they on December 10, 1895, levied a distress warrant upon certain products made that year on the rented premises by Elisha Houser. These products were sold under such levy, whereupon Willie Houser and others brought a rule against the sheriff, in whose hands were the proceeds of the sale, in which they contested with R. N. & B. C. Holtzclaw for priority in the distribution of that fund; the movants claiming under executions against Elisha Houser issued on the foreclosure of laborers' liens upon the property sold, and the Holtzclaws claiming under the distress warrant issued and levied as set out above. The movants contended that, while their liens as laborers were inferior to the lien for rent, they were entitled to the fund then in the hands of the officer, by reason of the fact that their liens were superior to the lien of the landlords for supplies, and that a sufficiency of the crops covered by the laborers' liens had previously been turned over to, and appropriated by, the landlords, to have extinguished the lien for rent, but that, instead of so applying them, they had been applied to the account for supplies, the lien of which was inferior to that of the movants.

Under the provisions of paragraph 6 of section 2800 of the Civil Code, it is provided that the lien for supplies, etc., furnished by landlords, shall be inferior to the general and special liens of laborers. By section 2794 of the Civil Code, it is provided that "liens of laborers shall arise upon the completion of their contract of labor, but shall not exist against bona fide purchasers without notice, until the same are reduced to execution and levied by an officer, and such liens in conflict with each other shall rank according to date, dating each from the completion of the contract of labor." Under this provision of the Code the lien does not arise in favor of the laborer until the completion of his contract of labor. Walls v. Rutherford, 60 Ga. 439; Brantley v. Rabyon, 61 Ga. 211; Dexter v. Glover, 62 Ga. 312; McDonald v. Night, 63 Ga. 161. While laborers' liens yield to bona fide purchasers without notice before they are reduced to execution and levied, they take precedence of all other liens, save such as are specially excepted by the Code. Langston v. Anderson, 69 Ga. 65. If it appeared that the laborers'

liens of the movants in this case arose prior to, and were in existence at, the time when the landlords appropriated the crops turned over to them, to the extinguishment of the lien for supplies, a very different question would be presented. Without undertaking to say how it should be decided, it seems clear that, as the liens of the laborers could not arise until the completion of their contracts of labor, the onus was upon them to show that, at the time of the alleged misappropriation of the proceeds of the crops on the part of the landlords, their contracts of labor had been completed, and consequently that their liens had attached. If the crops were turned over to, and appropriated by. the landlords prior to the time of the completion of the laborers' contract of labor, the latter at the time of such appropriation had no lien capable of enforcement at law, and therefore could not complain. The onus being on the laborers, then, to show the existence of the lien, and having failed to submit any affirmative evidence tending to show that the lien was in existence at the time of the alleged unlawful appropriation of the property, it follows that the court, to whom the cause was submitted without the intervention of a jury, committed no error in holding that the landlords were entitled to the fund in controversy under their lien for rent. Nothing is now ruled as to what might or might not be the equitable rights of a laborer, whose inchoate lien had not by the completion of his contract become complete, in a case where it appeared that the products of his labor were about to be, or had been, fraudulently or unlawfully placed beyond the laborer's reach. Judg ment affirmed. All the justices concurring.

IVEY V. NEW SOUTH BUILDING & LOAN ASS'N.

WILLIAMS v. SAME. (Supreme Court of Georgia. March 5, 1898.)

MORTGAGES-FORECLOSURE-Sale for CASH.

1. A provision in a security deed which contained a power of sale, directing that such sale must be for cash, was sufficiently complied with when the land described in the deed was duly advertised and exposed to sale in accordance with the terms of the power, and bid in by a person entitled to receive the proceeds of the sale, to whom the trustee authorized to make the sale thereupon conveyed the land, and entered upon the purchaser's debt a credit equal in amount to such proceeds.

2. This was exactly the same thing, in effect, as if the purchaser had been required to pay the amount of his bid in cash, and the trustee had immediately returned to him the money and made the credit as stated. (Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Judge.

Actions by Mary O. Ivey and by J. B. Williams against the New South Building & Loan Association. Judgment for defendant

in each case, and plaintiffs bring error. Affirmed.

W. Dessan and Robt. Hodges, for plaintiffs in error. Estes & Jones, for defendant in

error.

PER CURIAM. Judgment in each case affirmed.

GUNN ▼. GUNN.

(Supreme Court of Georgia. March 22, 1898.) GARNISHMENT-APPLICATION OF FUND-TRIAL

TERM-ANCILLARY PROCEEDINGS.

1. Where an equitable petition filed by the plaintiff in fi. fa., in aid of her garnishment proceedings, after the answer of the garnishee had been made, was duly served on the defendant, and had fulfilled its office, by bringing into court the money collected on a chose in action held up by the garnishment, the case was in order for trial at the following term of the court, although, by the prayer for process, it was made the appearance term of the ancillary petition.

2. The court did not err, upon the trial of the case in its order at such term, in directing that the fund thus raised be applied to the costs of the proceeding and to plaintiff's judgment, over the objection of counsel for the defendant in fi. fa.; no reason being given why the money was not subject to the plaintiff's demand.

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by H. A. Gunn against U. M. Gunn. Judgment for plaintiff, and defendant brings error. Affir.ned.

Guerry & Hall, for plaintiff in error. L. D. Moore, for defendant in error.

LEWIS, J. There can be no question that, where a remedy at law is not sufficiently adequate to secure the rights of a creditor who is seeking by garnishment to subject a fund to his debt, he has the right to file, in aid of the statutory proceedings, a petition praying for equitable relief. Kimbrough v. Shoe Co., 98 Ga. 537, 25 S. E. 576. Indeed, the right to the relief sought by the ancillary petition in this case was not denied. The effect of filing such a petition is not necessarily to postpone the trial of the case to the second term of the court following the filing of the petition. Should an equitable petition be filed, for instance, in aid of a levy or claim, the entire case made by such petition and the proceedings at law would be triable at the first term, unless the pleadings set up some matter requiring a postponement. The term at which a case is in order for trial must be governed by the law applicable to the return of the original proceeding in court. So far as the time for trial is concerned, an ancillary petition in aid of the original suit is nothing more in effect than an amendment to the original cause of action. In this

case the equitable petition had fulfilled its office, by bringing into court the fund sought to be subjected to plaintiff's debt. It is true, the money was paid to the clerk of the court by consent of the parties; but this consent was had after the appointment of a receiver, whose duty it was to collect the fund, and hold the same subject to the order of the court, and the effect of the agreement was simply to substitute the clerk for such receiver, in order to save expense. The fact that the petition prayed for process cannot change the rule. Such a prayer was really unnecessary, and did not convert the entire case into an original proceeding returnable to the next term, and triable at the second term of the court. When, therefore, the case was called in its order for trial at the first term of the court after the garnishee had made his answer, there being no traverse to the same, and no reason assigned for a continuance, there was manifestly no error in finally determining the issues involved.

2. The only objection to the granting of the order complained of in this case was that "there was no pleading then in court to authorize the same." The amendment to the petition especially prayed that the fund in court be applied to plaintiff's judgment against the defendant. There was no demurrer to the petition, no answer filed there. to, and no reason urged why the fund was not subject to the judgment, and should not be directly applied to its payment. In the case of Kimbrough v. Shoe Co., above cited, the petition in aid of the garnishment proceedings was never served upon the debtor, and he was not given notice of the hearing. He was present in court when the judgment was passed, and afterwards moved to vacate the order. Notwithstanding the irregularity in the failure to serve, this court held that, no valid reason being shown for rescinding the order, the court below did not err in refusing to set it aside. Judgment affirmed. All the justices concurring.

RUSHING v. WORSHAM et al. (Supreme Court of Georgia. March 5, 1898.) USURY-SALE OF GOODS-TIME AND CASH PRICE.

Where on January 18th merchandise was sold, "the cash price of which, agreed upon between the parties," was $18.23,-the sale itself not, however, being for cash, but distinctly on a credit until the 1st day of the following October, the transaction was not rendered usurious because the seller, in order to make a time price on the goods, added to the cash price the sum of $1.27, and included the amount thus arrived at in a promissory note which the purchaser gave after the latter date, securing the same by a mortgage on realty. The law recognizes the right of a seller to make a difference in his cash price and his time price for goods sold, and though, in a given instance, this difference may exceed 8 per cent., the law as to usury is not applicable.

(Syllabus by the Court.)

Error from superior court, Houston county; W. H. Felton, Jr., Judge.

Action by L. S. Worsham & Co. against J. W. Rushing. From a judgment striking his plea, defendant brings error. Affirmed.

M. G. Bayne, for plaintiff in error. Hardeman & Moore, for defendants in error.

LITTLE, J. On October 12, 1894, Rushing executed to Worsham & Co. a promissory note for $900, due November 11, 1895, together with a mortgage on certain real estate to secure the payment of the same. To a proceeding instituted by Worsham & Co. to foreclose this mortgage, Rushing filed a plea alleging that usury was included in, and made a part of, the consideration of the mortgage. From this plea it appears that, at intervals during the spring of 1894, Worsham & Co. sold to Rushing merchandise, to be paid for on October 1, 1894. In the plea the cash prices of the various bills of merchandise sold are set out, and the increased price at which they were charged to be paid for in October is shown; the difference between the cash price and the price at which they were charged being, as shown by the plea, 18 per cent. Rushing amended his plea, and alleged, as to one of the various transactions set out in the original plea, that the sum of $18.23 had been agreed upon between the parties as the cash price for the goods sold, whereas this item had been charged to become due October 1, 1894, at an increase of 18 per cent. (being 10 per cent. above the legal rate of interest), wherefore Rushing alleged that the mortgage which was given to secure the note for the merchandise account, and in which this item was included at the increased price, was tainted with usury. The plea did not, however, allege that the goods were actually sold at the cash price; and, moreover, the note was given after the account matured in the fall. Worsham & Co. demurred to this plea, and moved the court to strike the same, on the following grounds: (1) The allegations in the plea are insufficient, and too vague and uncertain. (2) The plea shows upon its face that it was for the purchase of merchandise on time prices,-in other words, for merchandise purchased in the spring of 1894, and to be paid for October 1, 1894,-and therefore a profit or per cent. on the said goods, as between a cash price and a credit price, for indulgence. (3) It does not allege a usurious rate of interest on money loaned, but simply shows a profit on the merchandise, being paid for waiting or indulgence from date of purchase to the time of payment. (4) The plea is insufficient, as appears upon the same, and does not set forth such facts as to charge usury, as required by statute. The court sustained the demurrer and struck the plea, and Rushing excepted.

By section 2877 of the Civil Code, usury is defined to be "the reserving and taking, or contracting to reserve and take, either di

rectly or by indirection, a greater sum for the use of money than the lawful interest." In testing the correctness of the judgment of the court striking the plea, it is only necessary to ascertain whether the facts alleged therein, which, under the demurrer, must be taken as true, are sufficient to bring the transaction within the purview of this provision of the Code. The substance of the plea is that Rushing purchased goods during the spring of 1894, which were not to be paid for until October 1, 1894, but that as to one of the items the cash price was agreed upon between the parties. It is true that. where property is sold at a cash price, it is usury to stipulate for more than legal interest on deferred payments. 27 Am. & Eng. Enc. Law, p. 999, and authorities cited. In the case of Irvin v. Mathews, 75 Ga. 739, it was held that where land was sold at a cash price, and time was given by the vendor to the purchaser upon a portion of the purchase money, and a greater rate of interest than that allowed by law was charged on such deferred payments, the contract was usurious. However, where the parties act in good faith, and without design to evade the statute, they may lawfully agree that the price on credit shall be a certain sum designated as principal, and a further sum designated as interest, though the latter exceeds the legal rate on the former for the period of credit. In other words, they may agree that both sums shall constitute the purchase price payable at the time fixed. 27 Am. & Eng. Enc. Law, p. 1000. It is not intended by the statute to prohibit a party from having two prices for his property,-one a cash price, and the other a time price. It is only intended thereby to prohibit the reserving and taking, or contracting to reserve and take, either directly or by indirection, a greater sum for the use of money than the lawful interest. Borum v. Fouts, 15 Ind. 50. It is not usury for one to sell property on credit for a higher price than he would have sold it at for cash and legal interest added. But if the sale be really made on a cash estimate, and time be given to pay, and an amount is agreed to be paid greater than the the cash price, with legal interest, would amount to, this is a usurious agreement for the use of money. Ford v. Hancock, 36 Ark. 248. The authorities are clear and explicit that, to constitute usury, there must be a loan, directly or indirectly, and that a real sale, without any intent to loan, though it may be oppressive, cannot be usurious. Tyler, Usury, p. 92. A person may sell his credit, his responsibility, his goods, or his lands; and, if he deals fairly, he may take as large a price for either as he can get, and there can be no usury in the case. Id. In the case of Garrity v. Cripp, 4 Baxt. 86, it was ruled that a note providing: "One day after date I promise to pay Pat Garrity $20.00 for forty bushels of corn, at fifty cents per bushel, bearing interest at ten and a

half per cent. If this note is not paid by the 8th day of July, the note is to be paid at sixty cents per bushel, or $24.00, bearing interest," etc.,-was not usurious; the court holding that one was the cash price, and the other the time price. A vendor may prefer a given amount in hand to double the sum in expectancy, and a purchaser may prefer the greater price with the longer credit; and one who will not distinguish between things that differ may say, with apparent truth, that in such a case the purchaser pays 100 per cent. for the use of the money or forbearance, but such a conclusion is manifestly erroneous. Such a transaction has none of the characteristics of usury. Brown v. Gardner, 4 Lea, 159, citing Hogg v. Ruffner, 1 Black, 118, 119. In the case of Willis v. Jefferson, 75 Ga. 743, it was held that: "Where to the foreclosure of a chattel mortgage a defense was filed, alleging that 'the agreement to pay the sum of eighty-five dollars, mentioned in the mortgage, was usurious, in that the goods sold by plaintiff in fi. fa. to the defendant were worth, at cash prices, only the sum of fifty dollars, and that the sum of thirty-five dollars was charged as credit on said sum, and amounted to more than one hundred per cent. per annum,' this was insufficient as a plea of usury, and was properly stricken on demurrer. It failed to show any contract for a cash price, or for extending the time or forbearing to collect for a greater rate of interest than the law allows." In the case of Irvin v. Mathews, 75 Ga. 739, it was ruled that "while it is lawful, and not usurious, to charge one price for property sold for cash, and a higher price for the same property if sold on credit, still, if the contract is that the property is to be sold at a cash valuation, and that certain payments are to be deferred, in consideration that a greater rate of interest than that allowed by law is to be paid by the purchaser, then the contract would be usurious."

In transactions of this character, it is the duty of the court to look, not at the form and words, but at the substance of the transaction; and as, on the one hand, it should not pay attention to the words of the transaction, or the manner in which it was negotiated, if the substance of it went to defeat the statute against usury, so, on the other hand, it ought not to rely upon the words or form of the transaction, if in substance such transaction was legal. Beete v. Bidgood, 7 Barn. & C. top p. 453. If it should appear that the negotiations contemplated a cash price, the payment of which was simply to be deferred in consideration of the computation of interest thereon, then the taking or contracting to take a greater rate of interest than that allowed by the statute

would be unlawful. But such are not the facts of this case, as they may be gathered from the plea of the defendant. It is manifest from the allegations therein contained that the goods were sold on time. They were purchased on a running account, to be paid for in the fall; and the mere fact that it is alleged that a given item of the running account was of an agreed cash price does not render the transaction usurious, when it appears that it, in conjunction with the various other items of the running account. were sold on time, and that none of such items were agreed to be purchased at a cash price, and payments deferred. It has been held that it was not usury to agree, upon the sale of goods at a certain price, that, if payment be not made in 30 days, 15 per cent. additional shall be included, as part of the purchase price. Bass v. Patterson, 68 Miss. 310, 8 South. 849. It has also been held that where the vendor of land asked $10,000 cash, but, the vendee being unable to pay cash, it was agreed that a deed and a bond and mortgage for $12,000, payable at a future date, with interest, should be executed, to be held by the vendor until he could dispose of the bond and mortgage for $10,000, when he would deliver the deed, and this arrangement was carried out, the bond and mortgage were not usurious. Brooks v. Avery, 4 N. Y. 225. In the case of Reger v. O'Neal, 33 W. Va. 159, 10 S. E. 375, it was said: “Usury is interest exceeding the lawful rate for the loan or forbearance of money, and does not exist where such interest is essentially and honestly a part of the consideration in the purchase of land, even though it be called for in the form of a percentage on a principal sum, and be called 'interest,' and be in excess of the lawful rate; the interest in such case, of an honest purchase, where it is not a mere cover for what is in fact a loan, being as much a part of the purchase price as that part appearing as the principal." These cases proceed upon the well-recognized doctrine that a vendor may have a cash price and a time price for his goods, and that, notwithstanding the difference between the cash price and the time price may exceed the lawful rate of interest, the sale will not be infected with usury, so long as it appears that the price charged was that in fact fixed for the purchase of the goods on credit, and with no intention of invading or defeating the object and purpose of the usury laws. The transaction, as it is made to appear from the allegations of the plea filed in the present case, was one of a sale of goods on credit. price fixed was the time price for such goods, and the law as to usury is not applicable. All the justices concurring. Judgment affirmed.

The

DASHER v. ELLIS. (Supreme Court of Georgia. March 5, 1898.) PAROL EVIDENCE-LOST DEED-ADVERSE POSSESSION-LANDLORD AND TENANT.

1. Parol evidence of the contents of a lost deed is inadmissible without proof that such deed has been properly executed.

2. Where a grandfather has made a parol gift of land to his grandson, who is a minor at the time, and the father enters into possession of the land for his son, such possession will inure to the benefit of the son, and can be made the basis of a recovery in an action against one holding adversely.

3. A tenant cannot dispute his landlord's title without first surrendering possession to the landlord. A possession which originated under the relation of landlord and tenant cannot be the basis of a prescriptive title as against the landlord and those claiming under him.

4. The charge of the court fairly covered the issues in this case under the ruling of this court when it was here before (see 29 S. E. 268, 101 Ga. 5), and there was no error in overruling the motion for a new trial.

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Ejectment by T. B. Ellis against Mrs. A. L. Dasher. Judgment for plaintiff, and defendant brings error. Affirmed.

LEWIS, J. This was an action of ejectment brought March 28, 1833, on a demise from Eliza Johnson and others against Mrs. A. L. Dasher, as tenant in possession. By an amendment filed February 19, 1894, and allowed June 24, 1895, a demise from Thomas B. Ellis was added. Besides the general issue, the defendant pleaded that she was in adverse possession of the land in dispute in her own right and under color of title for seven years prior to the commencement of the suit, and that the plaintiff's right of action was barred, because more than seven years had elapsed from the date of the alleged trespass by the defendant to the bringing of the action. The case first came to this court upon exceptions to the grant of a nonsuit, and the judgment of the court below was reversed at the March term, 1897. Ga. 5, 29 S. E. 268. Another trial was then nad, and resulted in a verdict for the plaintiff for the land in dispute and rents. There was testimony that J. E. Ellis took possession of the land in 1872 for Thomas Bagby, his father-in-law, and that in 1876 Bagby made a gift of the land to Thomas B. Ellis, plaintiff in the present case, who was a son of J. E. Ellis, and was then a minor; and J. E. Ellis thereafter held possession for Thomas B. Ellis, and in 1884 built a house upon the land, which he rented to John Walker, who went into possession with his wife, Lizzie Walker, she likewise attorning to Ellis as landlord by paying him rent. The parties upon whose demise the suit was originally

101

son.

brought were heirs of Bagby. The plaintiff's claim was based upon an alleged prior possession of J. E. Ellis for his said minor The defendant claimed under a deed from Lizzie Walker dated May 12, 1890, and introduced evidence whereby she sought to show that, when Lizzie Walker moved upon the land, she did so in her own right, and that, prior to the time when Ellis claimed to have taken possession of the land, Pompey Hunter was in possession of it claiming it as his own, and that Lizzie Walker held it under a deed from him to John Walker, and under a deed from John Walker to her; also under a sheriff's deed made in 1884. The motion for new trial was upon the general grounds that the verdict was contrary to law and evidence, and that the court erred as follows: (1) In ruling out the following testimony of Arthur Dasher, offered by the defendant: "I had a deed from Pompey Hunter either to John or John and Lizzie Walker. I think it was for three-fourths of an acre. That deed, with some other deeds and some tax fi. fas., were handed by Mr. Dessau at the other trial to Messrs. Ryals & Stone, who were on the other side. When the mistrial was declared, search was made for this deed, but it could not be found. The deed was not recorded, and I do not remember the witnesses thereto." (2) Because the court erred in the following charge: “If the plaintiff was in possession of it [the land] by his father, and that possession of the father was, at the time, the possession of the son, and as agent of the son, then he would be entitled to recover on that prior possession, and the son would not be barred; provided, of course you find the defendant has not established any contention as to that title or possession which I have stated to you." (3) In charging: "Ellis claims he rented the house to Lizzie Walker and John Walker for so much a month, and that in that way they went in possession. If that is true,-that is to say, if Ellis rented the house and lot, acre of ground, for four dollars a month, to the Walkers, and they went in possession as tenants of Ellis,-they cannot dispute his title, nor anybody claiming under them, in this case, if that is the way they went into possession of this title." The motion was overruled, and defendant excepted.

1. The plaintiff in error sought to prove by parol testimony the contents of a lost deed. It was simply offered to show by the witness that he had seen such a deed, and no evidence whatever was tendered to show that it had been duly executed. In fact, it does not appear, from the testimony objected to, that the deed which the witness had seen covered the land in dispute. It is a well-established principle of law that, to justify the admission of secondary evidence as to the contents of a lost deed, not only the existence of the deed must be shown, but it must be shown to have been