charged had been twice conveyed after being | novation is defined to be the substitution of so charged. The original debtor, as well as both alienees, made the defense of usury, and that was held sufficient to raise the question of usury. In that case it was also held that a purchaser of real estate charged with an usurious debt cannot defend against the usury, unless the debtor unites with him in the defense, or his acquiescence and consent to such defense appear in the record. In this case the original debtor, Wagoner, neither made the defense of usury himself, nor joined with the plaintiff in so doing, nor in any way acquiesced in and consented to such defense by the plaintiff. The principles stated leave the plaintiff without right in this case to be relieved from the usury, if the contract be usurious; and they are conclusive of the case in the absence of novation. In Chenoweth v. National Bldg. Asso. | did not decide as between the two constructions. one debtor by mutual agreement for another, whereby the old debt is extinguished. In order to make a novation, there must be an extinguishment of the old debt, which implies the release of the original debtor. This record does not disclose such a state of facts. The plaintiff does allege in the bill that the shares of stock in the corporation were transferred to him by Wagoner, and there is exhibited with the bill a passbook purporting to show payments by Stuckey to the corporation. These payments were entered on the passbook in the name, or initials, of H. J. Wagoner, as collector for the corporation, except two which were entered in the name of Smith as such collector. In the case of Chenoweth v. National Bldg. Asso. supra, which involved a building and loan association contract, there had been a transsuch defense with his grantee, or consents or acquiesces with his grantee in making the defense, that would be sufficient to permit such defense to be made. Harper v. Middle States Loan, Bldg. & Constr. Co. 55 W. Va. 149, 46 S. E. 817. And the same is true where the original mortgagor continues to hold some interest in the premises, and is therefore made a party, together with his grantees. People's Bldg. Loan & Sav. Asso. v. Welton, 2 Neb. (Unof.) 462, 89 N. W. 317; People's Bldg. & L. Asso. v. Palmer, 2 Neb. (Unof.) 462, 89 N. W. 316. So, a mortgagor of premises which he subsequently sells may defend in a proceeding to foreclose such mortgage, and make the defense of usury to it. Huston v. Stringham, 21 Iowa, 36. Where a deed does not specifically mention either mortgages or the debts thereby secured, and the only reference in it to liens on the property conveyed appears in the covenant of warranty, which warrants the title "subject to certain encumbrances aggregating the full sum of $2,200, which encumbrances the said party of the second part hereby agrees to assume;" and it does not appear what portion of this amount is represented by the mortgage in question, so that it cannot be said what amount of it the grantee assumed to pay,—both the original mortgagor and his grantee, who are parties defendant to a suit to foreclose such mortgage, may set up the defense of usury to it. Washington Nat. Bldg. & L. Asso. v. Andrews, 95 Md. 696, 53 Atl. 573. And where the original mortgagor is And it seems that if land be sold sub- made a party to the foreclosure proceedject to a usurious mortgage, and the ven-ing, and a deficiency decree is sought against. dee has notice from the vendor of the usury, and is by him authorized to make such defense against the mortgage, the abatement to which the mortgage would be subject on account of usury thus constituting an element in the purchase price of the land, such vendee would be allowed to raise the question. Henderson v. Bellew, 45 Ill. 322. And a mortgagor in a usurious mortgage, who has sold the mortgaged premises to another, subject to such mortgage, the amount of which was deducted from the purchase price, may join with his vendee in a proceeding to have the amount of usury exacted, deducted from the mortgage; and this, though he may have no present pecuniary interest in the matter. Valentine v. Fish, 45 Ill. 466. So, if a mortgagor is made a party to a foreclosure, or consents to making the defense of usury to a mortgage which he executed, his grantee who has assumed the debt may make such defense. Stephens v. Muir, 8 Ind. 352, 64 Am. Dec. 764. And if the original mortgagor joins in him, such defense can be made. Male v. Wink, 61 Neb. 748, 86 N. W. 472. The contrary to this was asserted wherethe original mortgagor in a usurious mortgage joined with the subsequent vendees, who assumed such mortgage, in an action to have the lien discharged on the ground that if the usurious exactments were credited on the debt it would be sufficient to pay it. Southern Home Bldg. & L. Asso. v. Winans, 24 Tex. Civ. App. 544, 60 S. W. 825. But where a deed of conveyance contains a general warranty of title, and the mortgagor is made a party to the foreclosureproceeding, and does not raise the question of usury, his grantee cannot. Bonnell's Appeal, 4 Sadler (Pa.) 7, 11 Atl. 211. Where a grantee of a mortgagor is precluded from setting up the usurious character of the mortgage which he has assumed, he is not thereby precluded from recovering usurious interest which he himself has paid on such mortgage. Zeigler v. Maner, 53 S. C. 115, 69 Am. St. Rep. 842. 30 S. E. 829. fer of the stock and a new account opened by the building and loan association with the purchaser of the property upon which the debt was charged, but, as in this case, there had been no extinguishment of the old debt and no release of the original debtor. The court properly held that there was not a novation, and we so hold in this case. The Middle States Loan, Building, & Construction Company by its answer does not pray affirmative relief either by way of decree against the plaintiff or enforcement of the trust; but the plaintiff having come into equity for an accounting and for relief against an alleged usurious debt, we think it is proper to adjudicate in this suit the amount of the debt in accordance with the agreement of record of the parties. For the reasons stated, the decree comThe contrary conclusion was reached where a vendee assumed a usurious mortgage shortly after its execution and before any substantial amount was paid upon it. The vendee, however, made sufficient payments during a period of over four years, to more than pay the debt if no usury was exacted. North Texas Bldg. & L. Asso. v. Hay, 23 Tex. Civ. App. 98, 56 S. W. 580. A defense of usury can be made against a mortgage by a subsequent mortgagee whose mortgage covers the same premises, and who is also a purchaser of the premises at a sale under an execution levied subsequent to such first mortgage. Brolasky v. Miller, 9 N. J. Eq. 807. And the fact that in a foreclosure proceeding on such first mortgage the mortgagor assented to a decree pro confesso, and declined to set up the defense of usury, or even expressly recognized the validity of the usurious mortgage, will not affect the right of the subsequent lien holder. And where a judgment creditor purchases mortgaged premises of his debtor on execution, he thereby places himself in a situation to raise the question of usury as to a mortgage on such premises. Dix v. Van Wyck, 2 Hill, 522. And the purchaser at a sheriff's sale on an execution can set up usury as a defense to a mortgage executed by the judgment debtor. Cummins v. Wire, 6 N. J. Eq. 73. So, a purchaser at a foreclosure sale under a second mortgage, where such mortgagee is not precluded from asserting usury as a defense to a prior mortgage, can also assert such defense, even though his deed contains a provision that it is subject to such prior mortgage. Pinnell v. Boyd, 33 N. J. Eq. 600. And a terre tenant who purchased mortgaged premises at a sheriff's sale under a judgment subsequent to the mortgage can raise the question of usury as to such mortgage. Fisher v. Kahlnan, 3 Phila. 213. plained of is reversed, and the amount of the trust debt mentioned in the bill and exhibits and evidenced by the bond of the defendant Wagoner to the corporation, dated the 11th day of March, 1893, is ascertained to be $496.56, with interest from the 15th day of November, 1904, until paid; and as to all other relief prayed for in the plaintiff's bill the bill is dismissed. This decision is without prejudice to any right, remedy, or proceeding on the part of the defendant corporation for the collection of the debt, the amount of which is here ascertained, or for the enforcement of the trust securing the same. Petition for rehearing denied January 10, 1907. But the contrary to this is held in the case of Stayton v. Riddle, 114 Pa. 464, 7 Atl. 72, where a terre tenant who purchased mortgaged premises at a sheriff's sale was denied the right to question a mortgage covering such premises, as being usurious, even though at the time of his purchase he entered into an oral understanding that the owner was to defend or permit him to defend against such mortgage on the ground of usury, where such owner afterwards refused either to defend or permit such purchaser to defend on that ground. And a second mortgagee who purchases property at a foreclosure sale under his mortgage, which is subject to an annual ground rent imposed by an instrument of lease, in reality a mortgage, and which is usurious, is precluded from making the defense of usury. Fulford v. Keerl, 71 Md. 397, 18 Atl. 663. And under a statute of Illinois which makes simply the interest of a usurious debt void, the junior mortgagee is not in such privity that he can assert usury in a prior mortgage, where such junior mortgage has not been foreclosed, and the mortgagee therein is not in possession of the property. Union Nat. Bank v. International Bank, 123 Ill. 510, 14 N. E. 859. A purchaser of mortgaged premises at a sale of the same in bankruptcy cannot question such mortgage on the ground of usury; and this is true, whether or not such sale is subject to the mortgage, if the mortgage was recorded at the time of the sale.. Nance v. Gregory, 6 Lea, 347, 40 Am. Rep. 41. And where an owner of land on which there is a usurious lien is adjudged a bankrupt and his land is sold by his assignee, a purchaser thereof cannot have the amount of such lien reduced by the amount of the usury. Miners' Trust Co. Bank v. Roseberry, 81 Pa. 309. GEORGIA SUPREME COURT. CARRIE MAY DAVIS, Plff. in Err., V. INDIA ALBRITTON. (Ga., 56 S. E. 514.) Probate-attack on judgment. 1. A judgment rendered by a court of ordinary admitting to probate the copy of a lost will may be contradicted, in a proper proceeding instituted for that purpose by an heir of the testator in the court which rendered the same, as to the facts necessary to give the court jurisdiction, on the ground of fraudulent misrepresentation of such facts by the party obtaining the judgment; and, if it be shown that the necessary juris: dictional facts did not exist, the judgment will be vacated, notwithstanding it may recite that they did exist. Facts-error. 2. The court erred in directing a verdict as well as general jurisdiction over the class for the defendant. Statement by Beck, J.: Mrs. Davis, an heir at law of one Carrie May, deceased, filed her petition against Mrs. Albritton, to the May term, 1905, of the court of ordinary of Fulton county, in which she sought to have set aside a judgment, rendered by that court at the February term, 1905, establishing a copy of the will of the said Carrie May, and admitting the same to probate in solemn form. She sought to have the judgment set aside on the grounds: (1) That the court rendering it was without jurisdiction of the person or property of the deceased, and it was therefore void; (2) that plaintiff was not legally served with notice of the proceedings to probate said will; and (3) fraud in the procurement of the judgment. The defendant was served with a copy of the petition and rule nisi, and filed her answer thereto. At the trial of the case, on appeal to the superior court, it appeared, from the evidence introduced by the plaintiff, that the testator, at the time of her death, was Headnotes by BECK, J. Note.-As to conclusiveness of probate, see note to Sly v. Hunt, 21 L.R.A. 680. As to collateral attack on findings as to jurisdictional facts, see note to Bolton v. Schriever, 18 L.R.A. 242. of cases, of which the particular case is one. Central R. Co. v. Brinsom, 109 Ga. 354, 77 Am. St. Rep. 382, 34 S. E. 597; Thompson v. Whitman, 18 Wall. 457, 21 L. ed. 897. The probate of a will is a proceeding is rem. Anderson v. Green, 46 Ga. 384; Stroupper v. McCauley, 45 Ga. 76. The judgment of a court of competent jurisdiction can be set aside for fraud or the acts of the adverse party, unmixed with negligence or fault of the complainant. Mobley v. Mobley, 9 Ga. 247; Pass v. Pass, 98 Ga. 791, 25 S. E. 752; Wallace v. Walker, 37 Ga. 265, 92 Am. Dec. 70; McArWilliams, 107 Ga. 410, 33 S. E. 468. thur v. Matthewson, 67 Ga. 135; Dodge v. The jurisdiction of a court over the subthe res, may always be attacked. ject-matter, or, in proceedings in rem, over Hart v. Lazaron, 46 Ga. 397; Jackson v. 108 Ga. 620, 34 S. E. 186. Hitchcock, 48 Ga. 494; Cutts v. Scandrett, Mr. Walter McElreath, for defendant in error: of the testatrix were questions at issue in The residence and testamentary capacity the application to probate, and these questions were concluded by the judgment. Barclay v. Kimsey, 72 Ga. 725; Israel v. Wolf, 100 Ga. 341, 28 S. E. 109; Anderson v. Green, 46 Ga. 384; Weathers v. McFarland, 97 Ga. 266, 22 S. E. 988. Beck, J., delivered the opinion of the court: 1. The general rule of law unquestionarisdiction has rendered a judgment in rela bly is that, when a court of competent jution to any subject-matter within its jurisdiction, the presumption arises that it had before it sufficient evidence to authorize it derwood as administrator was set aside and declared void ab initio on the ground that the court rendering the same had no jurisdiction, for the reasons above stated. This last judgment of the court was attacked, and Chief Justice Simmons, who delivered the opinion, said: "If the facts pleaded by them [the plaintiffs in the petition to set aside the former judgment] were true, there could be no question that the judgment [appointing Underwood administrator] was void; and 'a void judgment is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.' Civil Code 1882, § 3594. 'A judgment that is void may be attacked in any court and by anybody.' Civil Code 1882, § 3828. We do not see, therefore, why the defendants did not have a right to go into the court that rendered the judgment, and have it set aside." In the case of Jones v. Smith, 120 Ga. 644, 48 S. E. 134, it was held that, where the want of jurisdiction appears on the face of the record, the judgment may be collaterally attacked and treated as a mere nullity; but, where it does not so appear, it can only be attacked directly in a proceeding instituted for that purpose. to award such judgment, and said judgment will be conclusive as to the subject-matter which it purports to decide. But to this general rule there are acknowledged limitations growing out of circumstances. In the case of Boyd v. Glass, 34 Ga. 256, 84 Am. Dec. 252, it was said: "If a court have jurisdiction of a question, and acts upon it, that action, until set aside, is conclusive. But the question of jurisdiction is always open to investigation; and if, upon such investigation, it be found that the court had no jurisdiction of the person or subjectmatter, then all proceedings had are nullities." And to the same effect is the case of Thompson v. Whitman, 18 Wall. 457, 21 L. ed. 897, where it was said: "Want of jurisdiction may be shown either as to the subject-matter or the person, or, in proceedings in rem, as to the thing." See also McCauley v. Hargroves, 48 Ga. 50, 15 Am. Rep. 660. And it has been repeatedly held that a judgment may be set aside, upon a proper case made, by a decree in chancery, or by a proceeding at law, by petition with rule nisi or process, and service upon the necessary parties, instituted for that purpose in the court in which the judgment was rendered. Civil Code 1895, § 3987; Duer v. Thweatt, 39 Ga. 578, and cases there cited; Dugan v. McGlann, 60 Ga. 353; Tant v. Wigfall, 65 Ga. 412; Turner v. Jordan, 67 Ga. 604; Union Compress Co. v. Leffler, 122 Ga. 640, 50 S. E. 483. It appears from the report in the case of Stewart v. Golden, 98 Ga. 479, 25 S. E. 528, that the defendant, Golden, in order to resist an action of complaint for land, applied to the court of ordinary to set aside the judgment of that court, rendered at a previous term, appointing one Underwood administrator on the estate of Harris, deceased; the validity of a deed from Underwood, as administrator, un-erty of deceased within the limits of Fulder which the plaintiff was seeking to recover the lands, being dependent upon the validity of the judgment appointing said Underwood administrator. The ground alleged by defendant, Golden, for setting aside said judgment, was that the court of ordinary of Meriwether county had no jurisdiction to appoint Underwood administrator on the estate of Harris, for the reason that Harris did not reside in that county at the time of his death, had no property there at the time of his death, and had no bona fide cause of action against anybody residing there. A rule nisi was issued by the ordinary, calling on the plaintiff to show cause why the judgment appointing Underwood administrator should not be set aside, and this rule and a copy of the petition were served upon the other party, and at a succeeding term of the court of ordinary the judgment appointing Un It is distinctly alleged in plaintiff's petition that the deceased was not, at the time of her death, a resident of Fulton county (the jurisdictional fact recited in the order admitting the said will to probate), but was a resident of the state of Rhode Island, and left no property of any kind in said county of Fulton; that the defendant "knew that the said deceased was not domiciled in Fulton county, Georgia, at the time of her death, but was a resident of the state of Rhode Island," and at the time said will was offered for probate there was no prop ton county; and that the efforts of said defendant to obtain said judgment "amounted to a scheme and device in the nature of a legal fraud upon the honorable ordinary's court of Fulton county." If these allegations be true, the court of ordinary of Fulton county not only had no jurisdiction to render said judgment (Civil Code 1895, § 3279), but the rendition of the same was the result of a fraud perpetrated upon that court, by a false representation that the deceased was a resident of Fulton county at the time of her death (Louisville & N. R. Co. v. Chaffin, 84 Ga. 519, 11 S. E. 891); and a court of equity would have jurisdiction to set aside said judgment on the ground of fraud in obtaining the same (Wallace v. Walker, 37 Ga. 265, 92 Am, Dec. 70; Langmade v. Hamilton, 89 Ga. 441, 15 S. E. 535; Jones v. Smith, 120 Ga. 642, 48 S. E. 134). Was plaintiff entitled to have it set aside in the same court that | 1050; Baylies v. Curry, 128 Ill. 287, 21 N. E. rendered it? The question was answered 595; People v. King, 110 N. Y. 418, 1 L.R.A. in Stewart v. Golden, supra. If, as alleged 293, 6 Am. St. Rep. 389, 18 N. E. 245; Joand sought to be proved, a fraud was per- seph v. Bidwell, 28 La. Ann, 382, 26 Am. petrated by knowingly and falsely pretend- Rep. 102; Donnell v. State, 48 Miss. 661, 12 ing that the decedent resided in Fulton Am. Rep. 375; Munn v. Illinois, 94 U. S. county, the fact that citation was pub- 113, 24 L. ed. 77. lished would not prevent the plaintiff, who had no knowledge of the proceeding, from moving in due time, in the court where the judgment was rendered, to have it set aside. 2. Evidence having been introduced by the plaintiff which would authorize a jury to find a verdict in her favor, the court erred in directing a verdict for the defendant. Judgment reversed. Messrs. W. H. H. Miller, C. C. Shirley, and Samuel D. Miller, for appellees: Municipal corporations have only such powers as are expressly conferred by the state, and such incidental and implied powers as are necessary to carry out the purposes of their creation. Champer v. Greencastle, 138 Ind. 339, 24 L.R.A. 768, 46 Am. St. Rep. 390, 35 N. E. 14; Lafayette v. Cox, 5 Ind. 38; Kyle v. Malin, 8 Ind. 34; Scott v. Laporte, 162 All the Justices concur, except Fish, Ch. Ind. 34, 68 N. E. 278, 69 N. E. 675; Walker J., absent. INDIANA SUPREME COURT. CITY OF INDIANAPOLIS, Appt., V. ADDISON F. MILLER et al. (— Ind. —, 80 N. E. 626.) Municipal ordinance-theater exit. Statutory authority to define and abate nuisances does not empower a municipal corporation to forbid the opening of theater entrances and exits on alleys. (March 22, 1907.) v. Towle, 156 Ind. 639, 35 L.R.A. 749, 59 N. E. 20. Where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then an ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid. Dill. Mun. Corp. § 328; Ruhstrat v. People, 185 Ill. 133, 49 L.R.A. 181, 76 Am. St. Rep. 30, 57 N. E. 41; Cleveland, C. C. & St. L. R. Co. v. Connersville, 147 Ind. 278, 37 L.R.A. 175, 62 Am. St. Rep. 418, 46 N. E. 579; Evansville v. Martin, 41 Ind. 145; Walker v. Jameson, 140 Ind. 591, 28 L.R.A. 679, 49 Am. St. Rep. 222, 37 N. E. 402, 39 N. E. 869; Shelbyville v. Cleveland, C. C. & St. APPEAL by plaintiff from a judgment of L. R. Co. 146 Ind. 66, 44 N. E. 929; Pitts the Superior Court for Marion County in defendants' favor in a proceeding to recover a penalty for the alleged violation of a municipal ordinance. Affirmed. The facts are stated in the opinion. Shelbyville v. Cleveland, C. C. & St. L. R. Co. 146 Ind. 66, 44 N. E. 929; Freund, Pol. Power, §§ 63, 175, 155; 21 Am. & Eng. Enc. Law, pp. 978, 986; Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. | Ct. Rep. 357; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, Sup. Ct. Rep. 730; Polinsky v. People, 73 N. Y. 65; State v. Harrison, 162 Ind. 545, 70 N. E. 877; Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; Sturgis v. Hayman, 84 N. Y. Supp. 126; People v. Jensen, 99 App. Div. 355, 90 N. Y. Supp. 1062; Cincin nati v. Brill, 7 Ohio N. P. 534; Greenberg v. Western Turf Asso. 140 Cal. 357, 73 Pac. Note.-As to the power to define a nuisance, see note to Grossman v. Oakland, 36 L.R.A. 596. burgh, C. C. & St. L. R. Co. v. Crown Point, 146 Ind. 421, 35 L.R.A. 684, 45 N. E. 587. Gillett, J., delivered the opinion of the court: Appellant commenced this action against appellees to recover for the violation of certain provisions of an ordinance. Section 1 thereof is as follows. "Every theater, opera house, or building now or hereinafter erected for theatrical, operatic, or for any public amusement, or any building remodeled for the aforesaid purposes, in Indianapolis, Indiana, shall have all entrances for patrons front upon a public street, and not upon an alley; and in such buildings above mentioned there shall be suitable means of entrance and exists for the audience to and from each floor, balcony, and gallery: Provided, That at any office or other place maintained in any such building by the management thereof for the purpose of selling tickets it shall be required of such management to keep on sale tickets for any part of such building, wheth er the boxes, floor, balcony, or gallery." There were two paragraphs of the com |