defendant, and plaintiffs bring error. Affirm

ed.

J. L. Sweat, for plaintiffs in error. W. E. Kay and John C. McDonald, for defendant in error.

LUMPKIN, P. J. A petition for injunction and other relief, in which the Southern Pine Company of Georgia was named as defendant, was filed by "the Atlantic & Birmingham Railroad Company, formerly the Waycross Air Line Railroad Company, and J. E. Wadley, J. L. Sweat, C. C. Grace, W. W. Beach, A. Sessoms, and J. S. Bailey; also J. S. Bailey & Co. and J. R. & T. Bunn, who sue for the use of said railroad company." The action appears to have been brought in renewal of the litigation involved in the case of Waycross Air Line R. Co. v. Southern Pine Co., 115 Ga. 7, 41 S. E. 271, in which this court held that the railroad company could not, in its own name and right, invoke the relief sought by it. In addition to the facts then relied on, which are set forth in the opinion filed in that case by Chief Justice Simmons, the plaintiffs in the present proceeding alleged the following: The Atlantic & Birmingham Railroad Company is the legal successor of the Waycross Air Line Railroad Company. On February 4, 1899, in pursuance of a previous understanding between the stockholders of the latter company and certain parties to whom its line of railway had been sold, a written contract was duly entered into "by and between said J. S. Bailey & Company and the said Waycross Air Line Railroad Company" whereby, in consideration of certain reduced freight rates and other inducements offered by the railroad company, Bailey & Co., who were the owners of a large tract of timber, agreed to erect a sawmill, and to ship over that company's line the entire marketable product manufactured from the timber standing upon various lots of land which comprised the tract just referred to. Bailey & Co. subsequently sold this tract of timber to J. R. & T. Bunn, under covenant by them to perform the above-mentioned contract, and they, in turn, sold the timber to the Southern Pine Company under a like covenant. That company erected a sawmill upon the land, and, agreeably to its covenant with J. R. & T. Bunn, shipped lumber over the Waycross Air Line Railroad "until the month of April in the year 1901, when, upon said sawmill

• being destroyed by fire, said Waycross Air Line Railroad Company and said Southern Pine Company of Georgia thereupon agreed that, upon the same terms, and with existing rights and privileges, the Bailley & Company timber should thereafter be sawed at the Nicholls mill *

of the

said Southern Pine Company of Georgia, and the lumber therefrom shipped over the said Waycross Air Line Railroad, the only new condition demanded of plaintiff [the Air Line

Railroad Company, presumably] by defendant being additional switch facilities at that point, and for the purposes aforesaid, which were furnished"; whereupon the Southern Pine Company continued, for a short time, to make its shipments of lumber over the Air Line Railroad at the reduced rates of freight agreed on. Later, however, it diverted its shipments to other transportation lines, and refused, and still refuses, to comply with its obligations under the contracts above referred to, notwithstanding "the said railroad company, relying upon the terms and conditions of the contracts, covenants, and agreements aforesaid, and acting thereunder in the utmost good faith, expended large sums in the improvement and better equipment of its said road to enable it properly to transport the lumber sawed from the aforesaid timber." The result of the refusal on the part of the Southern Pine Company to comply with its obligations in the premises has been "to deprive said railroad company of revenue arising from its proportion of the freight rate provided for" in said contracts, "amounting to fifty thousand dollars, or other large sum. in which sum said railroad company has been damaged; and unless said Southern Pine Company of Georgia is restrained and enjoined and compelled to specifically perform the terms and conditions of the agreements, contracts, and covenants aforesaid, by shipping the lumber sawed from said timber over the road of said railroad company,

* it will be further defrauded and damaged in the additional amount of fifty thousand dollars, or other large sum." The Southern Pine Company, "if permitted to cut and divert the shipment of the lumber as aforesaid, would not be able to respond in damages, and, besides, is subject to have its affairs wound up at any time and to be dissolved." Though the sum just named would be the approximate amount of the loss sustained, "it would be difficult to properly estimate sald damages; and, moreover, the said railroad company requires all the revenue to which it is entitled promptly paid, from time to time, to meet its operating expenses. and hence the loss, injury, and damage to which it is and would be subjected * are irreparable." Το the end that a multiplicity of suits may be avoided, it is necessary that the rights and duties of all parties concerned should be ascertained and determined in one and the same action. The following amendment was subsequently presented and allowed: "And now comes [?] plaintiffs in above-stated case, and, by leave of the court, amends [?] the petition filed therein, so far as concerns J. S. Bailey & Company and J. R. & T. Bunn, or effects [?] them in any wise whatever, by alleging that the contract set out in the fourth paragraph of said petition [viz., that between Bailey & Co. and the Air Line Railroad Company] alleged to have been made and executed, and the damages sustained by

the railroad company for a breach thereof, is so alleged by the plaintiff the Atlantic & Birmingham Railroad Company."

The plaintiffs' petition was met by a special demurrer containing various grounds,among them, the following: (1) "There is a misjoinder of parties plaintiff, there being no connection, contractual or otherwise, shown between defendant and any of the plaintiffs except J. R. & T. Bunn"; (2) "no cause of action is alleged or attempted to be shown against defendant in favor of said J. R. & T. Bunn, said plaintiff not being alleged to have suffered any injury or damage, and no breach of the alleged contract between defendant and said J. R. & T. Bunn being alleged"; (3) "there is neither privity nor mutuality of contract alleged or shown between defendant and said plaintiffs J. S. Bailey & Co., J. S. Bailey, J. E. Wadley, J. L. Sweat, C. C. Grace, W. W. Beach, or A. Sessoms, nor is there alleged any breach of any contract between them, or either of them, and defendant, nor is it alleged that they, or either of them, have suffered any injury or damage at the hands of defendant, and therefore they are improper parties plaintiff"; (4) that the allegation of the petition with respect to the sale of the Air Line Railroad to Wadley and his associates, and the subsequent contract between the railroad company and Bailey & Co., are wholly immaterial and irrelevant, as are also the allegations as to the contract between Bailey & Co. and J. R. & T. Bunn and that between the firm last named and the Southern Pine Co.; (5) there is no charge of insolvency on its part; and (6) “it appears from said petition that the damage alleged is capable of computation, and no facts are alleged going to show that a judgment in law should not be obtained therefor, or that such a juagment, if obtained, could not be collected from the defendant." The Southern Pine Company also filed an answer in which it denied that it had, as alleged, upon the burning of its sawmill, entered into a contract with the Air Line Railroad Company, such as that declared upon, or a contract of any kind with respect to the shipment over its line of all of the lumber manufactured from what was known as the "Bailey & Co. tract of timber." An interlocutory hearing of the case was had upon the plaintiffs' petition as amended, and the defendant's demurrer and answer thereto, at which much evidence was introduced by both sides, and which resulted in an order denying the injunction prayed for. Error is assigned upon the passing of this order.

1. In view of the decision rendered by this court in Waycross Air Line R. Co. v. Southern Pine Co., cited supra, it is obvious that, as was clearly pointed out in the defendant's special demurrer, "there is neither privity nor mutuality of contract alleged or shown between" the Southern Pine Company and "Bailey & Co., J. S. Bailey, J. E. Wadley, J.

L. Sweat, C. C. Grace, W. W. Beach, or A. Sessoms." Accordingly, none of these parties should have been joined with either the railroad company or J. R. & T. Bunn as plaintiffs to the action. It is true that privity of contract is shown between the defendant and J. R. & T. Bunn; but why they were deemed necessary, or even proper, parties to the present action, is not altogether clear. Apparently they had nothing more than a bare speaking acquaintance with the Waycross Air Line Railroad Company, and do not appear to be on terms of any greater intimacy with its successor. They were not parties to the alleged contract between the Air Line Railroad Company and the Southern Pine Company, and therefore have no right to demand its enforcement. It is equally apparent that, as the Air Line Railroad Company was not a party to the contract between the defendant and J. R. & T. Bunn, the plaintiff railroad company can claim nothing under that contract. While J. R. & T. Bunn undertake to "sue for the use of said railroad company," they do not set up any facts going to show they have a right to maintain the action for their own benefit or protection, and are therefore in a position to nominate the plaintiff railroad company as usee. They cannot possibly sustain any injury or loss, save in the event they are called upon by Bailey & Co. to respond in damages for a breach of contract. The plaintiffs' petition does not seem to have been framed upon the theory that, unless the Southern Pine Company is enjoined from making itself further liable in damages, there is reason to apprehend that the Atlantic & Birmingham Railroad Company will enter suit upon the contract between its predecessor and Bailey & Co., and that they, in turn, will institute an action for damages on the contract between them and J. R. & T. Bunn, who, because of the insolvency of the defendant, will be the ultimate sufferers. We certainly would not feel authorized to place upon the petition such a construction, had it been demurred to on the ground that there was a misjoinder of causes of action. Giving effect to the amendment filed to the petition, wherein it was explicitly stated that neither Bailey & Co. nor J. R. & T. Bunn joined with the plaintiff railroad company in alleging the execution and breach of the contract between its predecessor and Bailey & Co., we are forced to the conclusion that the idea of the pleader was that by making the firm of J. R. & T. Bunn a nominal party plaintiff, ostensibly interested in protecting the Atlantic & Birmingham Railroad Company against further loss, it would be placed in a situation where it could demand the enforcement of a contract to which it was not a party, and in which it had no interest whatsoever. It is not within the province of a court of equity to make parties to contracts. This we undertook to decide when the case above cited was before us. Under the aver ments of the plaintiffs' petition as amended, J. R. & T. Bunn appear to be neither more

nor less than interlopers, attempting to intermeddle in a legal controversy with the outcome of which they have no real concern. If, for their own protection and the incidental benefit of the plaintiff railroad company, they desired to enforce by way of injunction the contract between them and the Southern Pine Company, they should have instituted in their own name and right a separate and independent proceeding, fully setting forth the facts upon which they relied as entitling them to equitable relief. If the Southern Pine Company is, in point of fact, insolvent, and therefore unable to respond in damages, we see no reason why such a proceeding might not have been successfully prosecuted. But it is a matter of grave doubt whether J. R. & T. Bunn would be entitled to an injunction upon the theory that the damages resulting from a further breach by the Southern Pine Company of its contract with them would be incapable of ascertainment, since, were this true, they could not be held liable on their covenant to Bailey & Co. for more than nominal damages, the payment of which would not operate as an irreparable injury, to prevent which a court exercising equitable jurisdiction could be called upon to adopt prompt and effective

measures.

2. As has been seen, it was alleged in the plaintiffs' petition that, after the sawmill erected by the Southern Pine Company was destroyed by fire, it entered into a new and independent contract with the Waycross Air Line Company with respect to the future shipment of lumber over that company's line of road. We are much inclined, however, to agree with counsel for the defendant in error that no satisfactory reason was assigned why it was necessary to the protection of the railroad company that the Southern Pine Company should be enjoined from committing a further breach of this alleged contract. But be this as it may, his honor below rightly held that the plaintiff railroad company was not entitled to the extraordinary relief sought; for on the interlocutory hearing of the case the fact was developed that no such contract was ever entered into by and between the Southern Pine Company and the Waycross Air Line Railroad Company. As the rulings above announced practically dispose of the case upon its substantial merits, we deem it unnecessary to deal with other points presented by the bill of exceptions.

Judgment affirmed. All the justices concurring, except LEWIS, J., absent on account of sickness.

(116 Ga. 298)

WALDEN v. A. P. BRANTLEY CO. (Supreme Court of Georgia. Aug. 9, 1902.) HOMESTEAD EXEMPTIONS.

1. Though land bought with the proceeds of a homestead is homestead property, and ordinarily stands, as to exemptions from sale, on the

1. See Homestead, vol. 25, Cent. Dig. § 233.

same footing as the original homestead, this is not true as against the rights of one who, bona fide and for value, acquires a lien on such land, without knowledge, either actual or constructive, of its homestead character.

2. Applying the rule above announced to the conflicting evidence in the present case, and giving to the defendant in error the benefit of that view of the same most favorable to it, as it was the right of the judge to do, there was no abuse of discretion in refusing to grant the interlocutory injunction.

3. The ruling made in Broome v. Davis, 87 Ga. 584, 13 S. E. 749, is not in conflict with this ruling.

(Syllabus by the Court.)

Error from superior court, Pierce county; Jos. W. Bennet, Judge.

Action by C. E. Walden against the A. P. Brantley Company. Judgment for defendant, and plaintiff brings error. Affirmed.

John C. McDonald, for plaintiff in error. Leon A. Wilson, for defendant in error.

LITTLE, J. Walden, as head of a family, sought to enjoin the Brantley Company from selling a house and lot in the city of WayCross. By his petition he made substantially the following case: In March, 1877, he had set apart to him, as the head of a family, a homestead of realty and personalty, the realty being a certain place whereon he then resided. Thereafter, in 1881, under an order granted by the judge of the superior court, the realty and some of the personalty exempted was sold, and the proceeds were reinvested in a house and lot on Albany avenue, in the city of Waycross. In 1899 that property was exchanged for the house and lot situated on the northwest corner of Isabella and Remshart streets, in the same city. He removed his family there, and that has been their home continuously to this day. This last-named property was purchased with the proceeds of the homestead which had been regularly set apart to him. The deed conveying this property to petitioner was made by A. L Johnson. It conveyed the land directly to petitioner, and was duly witnessed and recorded. In the year 1901 petitioner and C. T. Walden, his brother, engaged in the naval stores and turpentine business in Clinch county, and bargained for a turpentine plant from one Guthrie, who was indebted to the A. P. Brantley Company. Guthrie sold this plant to the petitioner and his brother, and took their promissory notes in payment therefor. These notes Guthrie transferred to his creditors, and in that way the Brantley Company came into possession of them. Petitioner and his brother borrowed $500 from the Brantley Company, and executed a mortgage to secure the notes so transferred, as well as the $500 borrowed, covering certain property, among which was the property in question. The petitioner alleged that he had no right to execute that mortgage, and that the Brantley Company knew, or ought to have known, such fact, as the property was homestead property; that the mortgage given con

sue.

tained a power of sale, and the Brantley Company were proceeding under that power to sell, were advertising all of the property described in the mortgage, and, if not restrained, would sell the house and lot in Waycross. Waiving discovery, petitioner asked for an injunction to restrain the Brantley Company from selling the house and lot before described. To this petition were attached copies of the homestead proceedings, which were regular on their face, and set apart certain described property as an exemption of personalty and realty. On the presentation of this petition, a temporary restraining order was granted, and a rule nisi directed to isThe defendant answered, setting up the fact that petitioner and his brother had borrowed $500 from it, and had executed a mortgage to secure this sum, together with certain promissory notes which it held against the firm of C. E. & C. T. Walden. It denied that the realty described in the mortgage was obtained by the proceeds of a sale of a homestead, but averred that it was the property of the petitioner, and was his property at the time of the execution and delivery of the mortgage, but alleged that, if the proceeds of any homestead were invested in this property, it had no notice or knowledge of any such fact at the time, and that it in good faith and for value accepted the notes of C. E. & C. T. Walden, and the mortgage given to secure them. The defendant further answered that before the execution of the mortgage it held a note signed by C. E. & C. T. Walden. payable to Guthrie, for $750, and that at the time of the maturity of the same it was not paid, and the defendant entered suit on the same. Thereupon the Waldens proposed that, if defendant would advance them $500 in money and goods for the purpose of operating their turpentine busidess, they would secure defendant with the property mentioned in the mortgage. This proposition was accepted, and thereupon the makers of the notes executed a mortgage on the property described, which includes the house and lot in the city of Waycross, to secure their notes, aggregating the sum of $1,200. Before the notes and mortgage were executed, the president of the defendant company asked both C. E. and C. T. Walden if there was any incumbrance on the property sought to be mortgaged, and both stated to him there was not. They also stated that there was no homestead against the property. Defendant acted in good faith throughout the transaction, and took the notes and mortgage bona fide and for value, without any knowledge that any of such property was impressed with the homestead, or proceeds of the homestead.

At the hearing, it was shown that in April, 1899, A. L. Johnson, in consideration of $500, conveyed to Charles E. Walden the house and lot in the city of Waycross, on the corner of Isabella and Remshart streets; and after testifying that he was the head of a family,

and that the house and lot had been purchased by the proceeds of the homestead which had been set apart to him, he further said that before the execution of the mortgage he told Mr. A. P. Brantley, the chief officer of the defendant company, that, while there was no mortgage or lien against the property, yet he had obtained a homestead for his family several years ago, and that the proceeds of that homestead was his Waycross home, on which he was about to execute this llen. He further said that when the original homestead property was sold, and reinvested in a home on Albany avenue, he did not obtain from the owner any deed to that place, up to the time he made an exchange of the property on Albany avenue for the property on Remshart street, and when he exchanged the property on Albany avenue for his present home he had the original owner to execute titles to the same to A. L. Johnson, and that Johnson, in turn, executed to plaintiff title to the property on Isabella and Remshart streets. C. T. Walden also testified that, before the mortgage to the Brantley Company was executed, he had heard his brother, the petitioner, tell A. P. Brantley, of the Brantley Company, that the property he was mortgaging was the proceeds of an alleged homestead set apart for the use of his family some years ago. Defendant introduced its mortgage, and the evidence of two witnesses who testified, in substance, to the facts set up in its answer, and, among other facts, that the makers of the mortgage came to an agent of the company and proposed to adjust their indebtedness by a mortgage on the property in Waycross; that this was accepted, and the notes and mortgage then executed; and that, on inquiry, each of the mortgagors said there was no homestead or exemption on the property. At the conclusion of the evidence, the judge refused to grant the injunction as prayed for, and revoked the temporary restraining order, to which Walden excepted.

1. The only question which arises in this case is whether the trial judge erred in refusing to grant the injunction. It is not contested that, at the time of the execution of the mortgage, C. E. Walden held a deed to the lot which he had mortgaged, and that Johnson, the previous owner, had executed title to him individually. It has been repeatedly ruled by this court that property purchased with the proceeds of a homestead is as much exempt from levy and sale as the original property set apart as a homestead would be. In the case of Johnson v. Redwine, 105 Ga. 449, 33 S. E. 676, it was also ruled that one who takes a mortgage upon land purchased with the proceeds of exempted property, and who knows, or is chargeable with notice, that such was the fact, acquires his lien subject to the exemption rights. On the other hand, the rule that a mortgagee, to the extent of his interest in the land mortgaged, stands upon the same footing as any other bona fide purchaser without

notice, has been repeatedly recognized (Lane v. Partee, 41 Ga. 202; Broome v. Davis, 87 Ga. 584, 13 S. E. 749), and that an innocent purchaser of land, for value and without notice, is protected against any secret equity which another has in such land, so that assuming that the house and lot in question was purchased with the proceeds of a homestead regularly set apart, yet if, at the time of the execution of the mortgage, the Brantley Company did not have, and were not chargeable with, notice of such fact, and in good faith advanced money to Walden on the security of a lien on the property, title to which then stood in his name, it took a lien superior to the claim of the homestead thereon. On the contrary, if the company had such notice, or was chargeable with the same, the lien which it took was subject to the homestead right.

2. In this state an interlocutory injunction is not a matter of right, but of discretion. This discretion is intrusted by law not to the supreme court, but to the judges of the superior courts. Barfield v. Putzel, 92 Ga. 442, 17 S. E. 616; Brumby v. Bell, 65 Ga. 116. If the Brantley Company took their mortgage with notice that the house and lot on which it took a lien was homestead property, either directly or indirectly, then the judge should have granted the injunction. On the contrary, if it did not have such notice, the injunction should not have been granted. Whether it had notice or not was a question of fact. The evidence in relation thereto was in direct conflict. The truth as to the question raised was involved. An equal number of witnesses swore to the contrary as to this point, and the judge, in determining the question, was required to pass on the credibility of the witnesses and determine the truth of the matter. In doing so, he gave credit to the witnesses of the defendant; and, if they were to be believed, the injunction was rightly and properly refused. This court cannot lawfully reverse the judgment, which depended upon the solution of this contested question of fact, unless the judge abused his discretion, and we are not able to say that he did. But it is argued by counsel for the plaintiff in error that the injunction ought not to have been denied, because the damage which would be caused to the plaintiff by a consummation of the sale would inflict irreparable injury upon him and his family, and, inasmuch as the question of notice was a contested one, that the injunction should be granted at least until this question was decided by a jury. In reply to this it may be said that, if the plaintiff had no notice, it was his right to sell the house and lot under his agreement; and, having such right, it would work an Injustice to him to unduly postpone it. However, these and kindred matters are by law left to the determination of the judge in ruling on the application for injunction. He has ruled in this case. His ruling was amply

supported by evidence, and we, not having the information as to the witnesses who testified in the case that the judge had, would only be indulging in a surmise were we to say that, in our opinion, the truth of the contested question was one way or another. So we do not find that his discretion was abused.

3. The ruling made in the case of Broome v. Davis, supra, is in no sense in conflict with anything which we have herein laid down. While this court there ruled that land paid for with homestead land was homestead property, though the deed to it be taken in the name of some one else than the head of the family, and reversed the judgment of the trial judge, who held that the property was subject to the mortgage execution, because of the fact that it was homestead property, yet an examination of the case distinctly discloses that this ruling was made because at the time of the execution of the mortgage the creditor was charged with notice of the homestead character of the land.

The trial judge did not, in our opinion, commit any error in refusing to grant the injunction.

Judgment affirmed. All the justices concurring, except LEWIS, J., absent on account of sickness.

(116 Ga. 303) TICHENOR v. WILLIAMS BLOCK PAVEMENT CO. et al.

(Supreme Court of Georgia. Aug. 9, 1902.) CORPORATIONS-STOCK SUBSCRIPTIONS COLLECTION BY RECEIVER.

1. A court of equity will not authorize or direct the receiver of a business corporation to sue for and collect unpaid stock subscriptions, when it appears that there is no existing creditor who has an unsatisfied debt against the corporation, and that the only purpose for which such authority is sought is to provide a fund for meeting obligations, on the part of the corporation, which it is altogether probable will arise in the future, and at a time when the corporation will have no solvent stockholder. (Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by W. R. Tichenor, receiver, against the Williams Block Pavement Company and others. Judgment for defendants. Plaintiff brings error. Affirmed.

Burton Smith and Geo. Gordon, for plaintiff in error. W. O. Wilson and Jas. L. Mayson, for defendants in error.

LITTLE, J. On the petition of the American Bonding & Trust Company of Baltimore city, the assets of a private corporation using the name of the Williams Block Pavement Company were placed in the hands of Tichenor, as permanent receiver, and all persons were enjoined from interfering with him in his control of the assets of that company. The petition on which the receiver was appointed