Woodward vs. W. M. & R. J. Lowry. 3. That a trust estate was vested in John McCarty, executor, and hence in defendant, for the use, benefit and behoof of Mary Ann Dolan during her life. 4. That this estate to her was subject to be opened upon the birth of a child to her, to let in such child, for a use, enjoyment, maintenance and support with its mother during her life. 5. That upon the death of the mother without a child, or the issue thereof, living at her death, the whole estate would have gone over to testator's mother, brothers and sisters. 6. That having left a child living at her death, the limitation over was defeated, and the absolute fee simple estate vested in the child. 7. That the trust in the defendant, William McGovern, became executed upon the death of Mary Ann Gaboury, she having left a living child. 8. That complainant takes the whole estate, not by inheritance from his mother, but by purchase, under the will of his grandfather, and a right of action having accrued to him, at the death of his mother, he is entitled to the relief he seeks. There is equity in the bill, and the judgment dismissing it on demurrer for want of equity was error. Judgment reversed. WOODWARD vs. W. M. & R. J. LowRY. Where a promissory note, payable to order, contained a provision that "each of us, whether principal, security, guarantor or endorser, or other party hereto, hereby severally waives and renounces, each for himself and family, any and all homestead or exemption, and each further waives demand, protest and notice of demand, protest and non-payment," and where the payee endorsed such note to give negotiability to the paper, he thereby became bound by all the terms and stipulations set forth in the contract, including waiver of demand and protest. January 21, 1885. Woodward vs. W. M. & R. J. Lowry. Promissory Notes. Endorsement. Principal and Surety. Protest. Waiver. Contracts. Before Judge HAMMOND. Fulton Superior Court. March Term, 1884. The question in this case was whether one who endorsed notes of the following form thereby waived notice of demand and protest: "$80.00. ATLANTA, GA., June 1st, 1883. "Thirty days after date, I promise to pay to the order of A. P. Woodward, eighty dollars at the banking house of W. M. & R. J. Lowry, for value received, with interest, after maturity until paid, at eight per cent per annum, with all costs of collection, including ten per cent as attorney's fees. Each of us, whether principal, security, guarantor, endorser or other party hereto, hereby severally waives and renounces, each for himself and family, any and all homestead and exemption rights, and any and all exemption of daily, weekly, monthly or yearly wages or salary of each of us, from the process of garnishment, either of us, or the family of either of us, may have under or by virtue of the constitution or laws of Georgia, any other state, or the United States, as against this debt or any renewal thereof; and each further waives demand, protest or notice of demand, protest and non-payment. Given under the hand and seal of each party. (Signed) W. H. HOWELL (L. S.)" (Endorsed). A. P. WOODWARD." The court below held that demand and protest was waived, and this was assigned as error. RICHARD II. CLARK; FRANK GORDON, for plaintiff in error. R. P. TRIPPE & SON, for defendants. BLANDFORD, Justice. W. H. Howell made a note or contract in writing wherein he promised, thirty days after date, to pay to the order of A. P. Woodward, eighty dollars, at the banking house of W. M. & R. J. Lowry, Atlanta, Ga., for value received, with interest, after maturity, at eight per cent per annum, with all costs of collection, including ten per cent attorney's fees, and "each of us, whether principal, secu Woodward vs. W. M, & R. J. Lowry. rity, guarantor, endorser or other party hereto, waives and renounces, each for himself and family, homestead exemption, and each further waives demand, protest and notice of demand, protest and non-payment.” This paper was dated June 1, 1883. Woodward en dorsed this paper by writing his name across the back, without more, and the same was discounted at the bank of defendants in error by them. Action was brought by them against Howell, as maker, and Woodward, as endorser, in a justice's court. Woodward insisted that, as defendants in error had not given him notice of demand and protest, he was discharged. The court below held" otherwise, and this ruling is assigned here as error. It has long ago been held that an endorser before maturity of a note may waive notice of protest for non-payment. 9 Ga., 303. And the question here is as to whether the payee of such a paper as has been set out, who has endorsed the same, is to be held to have waived notice of protest of the same. We are of the opinion that the endorser, who is the payee, and whose endorsement is essential to give negotiability to the paper, does, by virtue of such endorsement, become bound by all the terms and stipulations mentioned and set forth in the contract endorsed by him; that waiver of demand and protest, by the terms of this note, is waiver of demand and protest by such endorser; that he makes this waiver by the maker or drawer of this note his own waiver by his act of endorsement; it is his contract with the endorsee. Dan. on Neg. Instruments, Vol. II., §1092; Code of Ga., §2780; 8 Bush. (Ky.), 43; 29 Ga., 750; 7 Id., 494; 27 Id., 168, cited by defendants in error. 2 Kelly, 158; 38 Ga., 300; 32 Id., 28; 44 Id., 603, 63; 61 Id., 595; 59 Id., 776, 825; 55 Id., 618; 19 Pick., 373; 2 Burrill L. D.; Story on Prom. Notes and Bills, cited by plaintiff in error. Judgment affirmed. Kicklighter vs. Rosenthal & Fox. KICKLIGHTER vs. ROSENTHAL & FOX. A deed of record described the lot conveyed as follows: "Situated on the corner of Pine and Peachtree streets, commencing on Pine and running north ninety-three feet on Peachtree street; thence west two hundred feet to a ten-foot alley; thence south ninetythree feet to Pine street; thence along the north of Pine street to the beginning, containing one-half acre." On a bill to prevent the closing, by subsequent purchasers of adjoining lands, of a portion of the alley claimed to lie beyond the lot of complainant, the evidence was conflicting as to whether or not complainant bought the lot with reference to a map on which the alley was marked as running through from Pine street to a certain avenue seventy feet in width: Held, that the deed of complainant did not give notice of any right to an easement in an alley through the entire tract, but only to the use of an alley running along her lot from Pine street north, the width of her lot. Nor was there any other evidence of notice, and the injunction was properly refused. January 21, 1885. Streets and Alleys. Notice. Title. Easements. Injunction. Before Judge HAMMOND. Fulton County. At Chambers. June 28, 1884. Reported in the decision. CANDLER, THOMSON & CANDLER, for plaintiff in error. HOPKINS & GLENN, for defendants. BLANDFORD, Justice. The plaintiff filed her bill against defendants. praying an injunction, and the following facts appeared: C. W. Hunnicutt was the owner of a certain tract of land in Atlanta; he caused a survey and map of the same to be made, and placed the same in the hands of Geo. W. Adair, a real estate agent, to be sold at public outcry; by the map, the tract was cut up into several lots, and a ten-foot alley was left through the entire tract from Pine street to Kicklighter vs. Rosenthal & Fox. a certain avenue seventy feet wide. The property was offered for sale, but not selling for enough, the same was withdrawn. Afterwards Hunnicutt sold a certain lot, number one, to Mr. Kicklighter, and a deed was made by Hunnicutt to Mrs. Kicklighter to this lot, and the deed described the lot as situated on the corner of Pine and Peachtree streets, commencing on Pine and running north ninety-three feet on Peachtree street; thence west two hundred feet to a ten-foot alley; thence south ninetythree feet to Pine street; thence along the north of Pine street to the beginning, containing one-half acre. The evidence of the plaintiff tends to show that she purchased this property with reference to the map before alluded to, while the evidence of defendants is to the contrary.* The plaintiff's deed was recorded. Defendants answered the bill, and denied that they had any notice of any claim of plaintiff to an easement or right to an alley-way through the entire tract, but only to the use of the alley running along her lot from Pine street north the distance or width of her lot; that they purchased the balance of said tract after Mrs. Kicklighter's purchase without any notice of her claim other than that stated in her deed from Hunnicutt, nor does the record show any other notice to defendants than what is contained in Mrs. Kicklighter's deed. We cannot say, from the facts set forth in this record, that defendants had notice of plaintiff's claim to use an alleyway through the entire tract, nor are there sufficient facts shown to be within the knowledge of defendants to charge them with notice of such claim of plaintiff, even if such claim did exist. What notice did the defendants have? They knew from her deed from Hunnicutt that she was entitled to use an alley-way ten feet wide across the back of plaintiff's lot. *The object of the bill was to enjoin the obstruction of the alley by buildings, which defendants were preparing to erect, at a point beyond the line of complainant's lot. |