Millen vs. Stines et al. Defendants further proved that Worley had some of the land in cultivation when it was sold to him by Fain, and kept it in cultivation afterward; that Nelson Stines had been in continuous possession since he bought it, had cleared fifteen acres more than seven years before the suit was brought, and had made about eight crops on the land; that Worley paid one of the notes, and he let Worley have some money to pay the other note, but did not know whether it was paid. To whom Worley made payment does not appear. One of defendants' witnesses testified that it was his understanding (he being a son of Worley) that Stines was to pay the second note, but witness did not know whether it had been paid. Plaintiff admitted that Worley bought and went into possession in good faith. The jury found for defendants. Plaintiff moved for a new trial on the following grounds: (1)-(2) Verdict contrary to law, evidence, etc. (3) Error in the following charge: If Francis Worley bought the land from J. B. Fain, and took a bond for title from said Fain as attorney or agent for Harris & Millen, and Fain had no authority from them to make the bond, but if the bond was signed by Fain as agent for Harris & Millen, then it was forgery and would constitute good color of title, if received by Worley in good faith believing he was getting a good title; and if defendants got their bond for title from Worley or his representatives and went into possession of the land under said bond in good faith, and remained there as long as seven years, it would constitute a good statutory title, and it would be the duty of the jury to find for defendant. The motion was overruled, and plaintiff excepted. There was no error in refusing to grant a new trial, on either of the grounds taken in the motion. We V 81-42 Millen rs. Stines et al. think the charge complained of in the 3d ground was correct, when applied to the facts disclosed in this record. It was insisted, however, by counsel for the plaintiff in error that this court, in Simmons vs. Lane, 25 Ga. 178, had decided that a bond similar to the one in this case, was not good as color of title. We have carefully read that case, and do not doubt that it was a correct exposition of the law as applied to the facts of that case. The facts of this case are different. In that case the bond was objected to because its execution had not been proved, and because no authority was shown constituting Hansell Meredith's agent or attorney in fact. There was no proof showing whether Hansell was or was not Meredith's agent when he signed Meredith's name to the bond. There was no proof of anything going to show that the bond was or was not Meredith's, and the court correctly excluded it for the want of such proof. In this case, the plaintiff admitted that Fain signed this bond to Worley, and the plaintiff went further and proved that Fain was not his agent nor the agent of Harris, and that he had no authority to sign said bond from either of them. When this proof was made by the plaintiff, there was no contradiction of it, and it followed, as a matter of course, that the names of Millen and Harris to the bond were forged. It was also admitted by the plaintiff that Worley bought in good faith from Fain, and we think the court was right when it instructed the jury that if the bond was signed by Fain as agent for Millen and Harris, and he had no authority from either of them to make said bond, it was a forgery, and would constitute a good color of title if received by Worley in good faith. Code, §2683; Griffin vs. Stamper, 17 Ga. 108; same case, 20 Ga. 312. If the plaintiff had relied on the proof which he sub Memmler vs. Roberts et al. mitted in his opening, and the proof submitted by the defendant, he would have been entitled to a verdict; because it was incumbent on the defendant to show the authority of Fain to sign the names of Millen and Harris to that bond, or else show that it was a forgery; and they had failed to show either that Fain had the authority, or that the bond was a forgery. 20 Ga. 312, supra. The plaintiff, by his rebutting testimony, however, supplied this defect in the defendants' case, and showed by the interrogatories of Millen that it was a forgery; and it being a forgery, it was admissible in evidence and was color of title; and Stines, having in good faith been in possession of the land under this color of title for seven years, had a good prescriptive title, and was therefore entitled to a verdict. Judgment affirmed. MEMMLER VS. ROBERTS et al. It having been held in this case, at the last term of this court, that the part of the act creating the city court of Cartersville which authorized the carrying of cases from the city court to the superior court by bill of exceptions, was unconstitutional and void, it follows that everything done under that section of the act was also null and void; and therefore the bond given by the losing party in the city court, when he carried the case by bill of exceptions to the superior court to supersede the judgment of the city court, was null and void, and no judgment could be entered thereon. December 12, 1888. Res adjudicata. Supersedeas bond. Judgments. Be fore Judge NEEL. City court of Cartersville. term, 1888. Reported in the decision. JOHN W. AKIN, for plaintiff. June Memmler vs. Roberts et al. E. D. GRAHAM, by brief, for defendants. SIMMONS, Justice. Mrs. F. C. Memmler filed her petition in the city court of Cartersville in and for Bartow county, alleging that at the March term, 1887, of said court, she recovered a judgment against W. W. Roberts, that Roberts moved for a new trial, which motion was overruled; that he sued out a writ of error to the superior court of said county, giving a supersedeas bond with C. McEwen as the surety thereon; that the superior court heard the cause, and over petitioner's objection, decided that it had jurisdiction to hear and determine the writ of error and bill of exceptions sued out by said Roberts, and reversed the judgment of the city court; that petitioner took the case to the Supreme Court, which reversed the judgment of the superior court, upon the ground that said superior court had no jurisdiction to review procreedings of said city court under a bill of exceptions therefrom; that in open court on May 21st, 1888, petitioner moved the court to have the remitter entered and made the judgment of the superior court, and thereupon the judgment of the Supreme Court was made the judgment of the superior court, and a judgment given petitioner against said Roberts for costs. The judgment of the superior court is set out in the petition. Petitioner prayed that the said remitter and the judgment entered thereon be entered on the minutes of said city court, and that she be granted a judgment against said Roberts, and said McEwen as security, for the full amount of her original judgment and all costs. Attached to the petition, as exhibits, were the supersedeas bond for the eventual condemnation money, signed by Roberts and by McEwen as his surety, and the remitter from the Supreme Court of Georgia, to King et al. vs. Cabaniss. gether with the judgment entered upon said remitter in the said superior court. To this petition Roberts and McEwen demurred orally, and moved to dismiss the same. The presiding judge refused to grant the prayer of the petition, and to this decision petitioner excepted. The court committed no error in refusing to allow the plaintiff to enter up judgment against the security on the supersedeas bond. When this case was here at the last term of this court, we held that that part of the act creating the city court of Bartow county, which authorized the carrying of cases from the city court to the superior court by bill of exceptions, was unconstitutional and void. That being true, everything done under that section of the act was also null and void, and therefore the supersedeas bond given by Roberts, and signed by Ewing as security, was null and void; and the court did right in refusing to allow a judgment for the eventual condemnation money to be entered up thereon. See page 351, ante. Judgment affirmed. KING et al. vs. CABANISS. 1. Where the advertisement by an administrator to sell land in the county where it lies was published for the full legal period after general leave to sell had been granted, that the special order to sell in that county was passed pending the advertisement, and not until less than twenty days before the day of sale, did not make the sale invalid or even irregular. The authority to sell, and consequently to advertise, grew out of the general order, and the special order subsequently granted related to the final exercise of the authority and the place of such exercise. 2. Though the intestate at the time of his death was a tenant in common with a surviving cotenant, and owned but an undivided halfinterest in the premises, yet a legal sale and conveyance made by his administrator of the south half of the tract, divested the title of the heirs to that half. The sale was not vitiated by selling a 81 661 118 272 |