Joseph Hull, et al., Appellants, v. Arthur E. Burr, as Trustee, in Bankruptcy, etc., Appellee, 58 Fla. 432

Shackleford, J., (after stating the facts.) — We have copied in full in the foregoing statement the amended bill, 'the demurrers interposed thereto and the assignments of error predicated upon the order of the court overruling such demurrers, omitting only the formal parts of the several instruments. Our purpose in doing this is to show clearly just what points are presented to us for consideration and determination. As will be readily seen, all of such points are embraced within the general question as to whether or not the amended bill is sufficient to withstand the attack made upon it by the demurrers.

That question we shall now undertake to answer, but without discussing the several assignments in detail. It seems well to begin with the consideration of the proper construction to be placed upon

section 2494 of the General Statutes of 1906, which is as follows: “2494. (1981.) Instruments deemed mortgages. — All deeds of conveyance, obligations conditioned or defeasible, bills of sale or other instruments of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money, whether such instrument be from the debtor to the creditor or from the debtor to some third person in trust for the creditor, shall be deemed and held mortgages, and shall be subject to the same rules of foreclosure and to the same regulations, restraints and forms as are prescribed in relation to mortgages.” Originally this

section formed

section 1 of

an act approved the 30th day of January, 1838, found on page 12 of the Acts of 1838, reading as follows:

Section 1.

Be it enacted by the Governor and Legislature Council of the Territory of Florida, That all deeds of conveyance, bills of sale, or other instruments of writing, conveying or selling property, either real, personal or mixed, for the purpose, or with the intention of securing the payment of money, whether such deed, bill of sale, or other instrument, be from the debtor to the creditor, or from the debtor to some third person or persons in trust for the creditor, shall be deemed and held as mortgages, and shall.be subject to the same rules of foreclosure, to the same regulations and restrictions as now are, or may hereafter be prescribed by law, in relation to mortgage.” This act was amended by

Chapter 525 of the Acts of 1853, found on page 104, reading as follows: “An Act to amend the Laws now in force relating to Mortgages.

Section 1.

Be it enacted by the Senate and Bouse of Representatives of the State of Florida in General Assembly Convened, That all deeds, obligations, conditioned or defeasible, bills of sale, or other instruments of writing, made for the purpose, or with the intention of securing the payment of money, whether such instruments of writing be from the debtor to the creditor, or from the debtor to some third person, or persons in trust for the creditor, shall be deemed, and held as Mortgages, and shall be subject to the same rules of foreclosure, to the same regulations, restrictions, restraints and forms, as are now, or hereafter may he prescribed by Law in relation to Mortgages; but in no case, shall the obsolete, and antiquated claim in favor of the Mortgagee to the right of possession of the property, specified in said Mortgage, or any part thereof, by reason of any alleged failure of payment, or Breach of Promise, or other default, be recognized or admitted in a Court of Justice in this State, either by Judge or Jury, until all other steps and forms prescribed by law for the foreclosure of Mortgages be complied with and observed.

Sec. 2. Be it further enacted, And declared, that a constructive possession, or possession in the eye of the Law, by the Mortgagee, shall not be allowed to impair, or bring in question, the actual, and for ages, the admitted right of possession of the Mortgagor, until deprived thereof by decree; that a Mortgage is, and shall be, held in our Courts a specific lien on property, thereon for a specific object, and in point of fact as well as law, the Mortgagee is incapable of acquiring possession until after decree of foreclosure, and then only by bidding, and out bidding all competitors in market. Sec. 3.

Be it further enacted, That all acts, or parts of Acts, conflicting with the true intent and meaning of this Act, be and the same are hereby repealed. (Passed the House of Eepresentatives, January 3, 1853. Passed the Senate, January 6, 1853. Approved by the Governor January 8, 1853.)” This

Chapter was brought forward, with certain modifications, into the Eevised Statutes of 1892 as sections 1981 and 1982. Such

section 1981 is the same as

section 2494 of the General Statutes of 1906, which we have copied above, and such

section 1982 is brought into the General Statutes as

section 2495, which is as follows: “2495. (1982.) Nature of a mortgage. — A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” The differences in the acts of 1828, 1853 and the sections of the Revised and General Statutes are obvious, so that no comment thereon is necessary. These sections in their different forms have been before this court several times for construction. In McGriff v.

Porter, 5 Fla. 373, it was held that “the act of January 30, 1838, was “intended to limit and restrict the operative force of certain classes of conveyances therein mentioned, and not to extend or enlarge the éffect of others.” As was said therein, “the act mentioned ‘deeds of conveyance and bills of sale,’ and although it uses the terms, or ‘other instruments of writing,’ yet these terms, upon a familiar rule of

interpretation, must be taken to mean instruments ejusdem generis, of a kindred character to those which are specifically designated, and this is fully sustained by the description which is contained in the statute, which shows that it was designed to operate on those instruments alone which have the effect of ‘conveying or selling property, real, personal or mixed, for the purpose or with the intention of securing the payment of money.’ ” This construction has been recognized, approved and followed in Chaires v. Brady, 10 Fla. 133, and Lindsay v. Matthews, 17 Fla. 575. In Hollingsworth v.

Handcock, 7 Fla. 338, will be found a discussion and definition of the distinction or difference between a mortgage and a conditional bill of sale. In Smith v. Hope, 47 Fla. 295, 35 South. Rep. 865, it was held that “where parties intend a conditional sale rather than a mortgage the intention will be given effect. An instrument in form a conditional bill of sale, and alleged in a bill seeking to enforce it to be a conditional bill of sale, will not, upon a demurrer to the bill, be held a mortgage.

If the circumstances under which it was given are such that it will be held in law a mortgage, but these do not appear from the bill, they must be set up by plea or answer. A feature essential to a mortgage is an indebtedness which it is designed to secure. The existence of this is not implied in a provision that a bill of sale shall be void if the grantors shall ‘pay’ a certain sum of money by a certain day.

Payment of money does not necessarily imply a previous binding obligation to pay, but may be made as .the recompense or equivalent for some present benefit, the procurement of which is optional with the prayer.” It is true that in this last cited case a dissenting opinion was filed by Mr. Chief Justice TAYLOR, in which the writer hereof concurred. This case came a second time before this court. See Smith v. Hope, 51 Fla. 541, 41 South. Rep. 69.

The pleadings in the cited case, including the written instrument presented for construction, are so variant from the pleadings and written instrument in the instant case that such cited case throws but little light upon the question now presented. However, as we see it, it makes practically no difference, so far as the instant case is concerned, whether we uphold the majority opinion or follow the dissenting opinion in the cited case, therefore we shall spend no time in discussing that point. Without meaning to question the correctness of either the reasoning used or the conclusion reached in Hollingsworth v.

Handcock, supra, we would call attention to the points of difference also existing in that case and in the instant case. It was held in Campbell Printing Press Manuf’g Co. v. Walker, 22 Fla. 412, 1 South. Rep. 59, that it was not the intention either of the act of 1838 or of 1853, both of which we have copied above, to give any other construction to an instrument of writing than the parties thereto intended. In Franklin v.

Ayer, 22 Fla. 654, it was held that “courts of equity will, in pursuance of a wise and benign rule, in cases of doubt as to whether the parties intended the transaction as a mortgage or conditional sale, hold it to be a mortgage.” In addition to the cases already cited, the following decisions of this court dealing with the statute from different viewpoints will prove of service as showing the extent to which the court is willing to go in order to ascertain the real intention of the parties as to the instrument which may be in question and under what circumstances and how far parol evidence is admissible to show that an instrument which may on its face be an absolute deed of conveyance or bill of sale is in reality of such a nature that it must be “deemed and held” a mortgage and “subject to the same rules of foreclosure and to the same regulations, restraints and forms as are prescribed in relation to mortgages,” in accordance with the provisions of such statute: Matthews v.

Porter, 16 Fla. 466; Shear v. Robinson, 18 Fla. 379; Walls v. Endel, 20 Fla. 86; First National Bank of Florida v. Ashmead, 23 Fla. 379, 2 South. Rep. 657; Shad v. Livingston, 31 Fla. 89, 12 South. Rep. 846; Margarum v. J. S. Christie Orange Co., 37 Fla. 165, 19 South. Rep. 637; DeBartlett v. DeWilson, 52 Fla. 497, 42 South. Rep. 189, S. C. 11 Amer. & Eng. Anno. Cas. 311; Wylly-Gabbett Co. v. Williams, 53 Fla. 872, 42 South. Rep. 910.

It is true that in the instant case we are not called upon to deal with any questions of evidence but only with questions of pleading, yet these cases are useful in showing the policy úf this court. Another principle which may prove of service to us is that in passing upon a demurrer to the whole bill in a suit in equity, every presumption is against the bill, but it is also true that such a demurrer operates as an admission that all the allegations in the bill which are well pleaded are true, and a demurrer to the whole bill should be overruled, if the bill makes any casé for equitable relief. Lindsley v.

McIver, 51 Fla. 463, 40 South. Rep. 619, áñd authoritiés there cited; Holt v. Hillman-Southland Co., 56 Fla. 801, 47 South. Rep. 934. This principle cannot be applied in its entirety for the reason that neither demurrer was interposed to the whole bill, one going only to the thirteenth paragraph and the other to all of the bill except such thirteenth paragraph. However, in so far as such principle is applicable, it will prove helpful to us. There is still another principle which it may be well to keep before us.

In construing any written instrument, whether a deed of conveyance, a bill of sale, mortgage, contract or what not, the entire instrument must be considered in order to gather the real intent and true design of the makers thereof. 'To that end, all the different provisions of such instrument must be looked to and all construed so as to give effect to each and every of them, if that can reasonably be done. If clauses therein seem to be repugnant to each other, they must be given such an

interpretation and construction as to reconcile them if possible, remembering that the intent is.the principal thing to be regarded. If one

interpretation, looking to the other provisions' of the instrument and its general scope, would lead to an absurd conclusion, such

interpretation must be abandoned and one adopted which will be more in accord with reason and probability. See Jacobs v. Parodi, 50 Fla. 541, 39 South. Rep. 833, and McNair & Wade Land Co. v. Adams, 54 Fla. 550, 45 South. Rep. 492, and authorities cited therein. Taking up now for consideration the bill and the exhibit attached thereto and made a part thereof, and looking at the same in the light of the cited authorities, does the instrument of which such exhibit to the bill is a copy fall within that class of instruments contemplated by the statute so that it must be deemed and held a mortgage?

That is the crucial question presented by the assignment of errors and which we are called upon to answer. Having copied the bill and exhibit in the prefatory statement to this opinion, we shall not undertake to set forth herein in detail the allegations or provisions thereof hut content ourselves with referring to such statement. Stated in a very succinct form, we find from such hill and exhibit that one Hiram W. Rowell made and entered into a contract with one Clarence A.

Boswell for the purchase from such Boswell of certain described realty and personalty, which contract was assigned and transferred by Rowell to the Port Tampa Phosphate Company, a corporation, which corporation immediately entered into the possession of such property and became the equitable owner thereof, subject to the payment to Boswell of the balance of the purchase price, approximately twelve thousand dollars; that such property was acquired by such corporation for the purpose of establishing and operating a phosphate plant and also constituted its entire property; that immediately after taking possession thereof such corporation proceeded to complete and extend .the phosphate plant which had been partially constructed and expended in so doing upwards of sixty thousand dollars; that afterwards such corporation, being pressed by the persons to whom Boswell had assigned his rights under the contract made with Rowell for the payment of the balance of the purchase price, applied to the defendant Joseph Hull, who is one of the appellants here, for “a loan of money with which to pay the said balance, together with a small amount of additional indebtedness then owed by the said Port Tampa Phosphate Company, and also certain other moneys that would be required by the said Port Tampa Phosphate Company to complete the said phosphate plant on the said premises;” that Hull was willing and “agreed to advance the said moneys,” but was unwilling to accept a mortgage on such premises from such corporation because it had never acquired the legal title thereto and required that the deed of conveyance to such premises should be made direct to him, the said Hull, “so as to secure him for the money then advanced and thereafter to be advanced by him for the completion of the said plant;” that for the reasons stated in the bill the board of directors of such corporation assented to the terms demanded by Hull, “upon his entering into an obligation to convey” such premises to such corporation upon being repaid the sum of money then advanced and the sums to be thereafter advanced by him, but that such proposition was never submitted by the board of directors to the stockholders of such corporation or assented to by them,” although the said premises embraced and included all of the property and assets of the said corporation;” that in pursuance of such agreement Hull advanced the sum of $13,404.77 with which to pay the balance of the purchase price and that such premises were conveyed direct to Hull by the assignees of Boswell, who w ere then the owners thereof, and that contemporaneously therewith Hull executed and delivered to such corporation a written agreement, a copy of which is attached as an exhibit to the bill and made a part thereof; that after the execution and delivery of such deed and agreement on or about the 9th day of June, 1905, such corporation continued to remain in possession of such premises and to make improvements thereon until a petition in bankruptcy was filed against it in the United States District Court for the District of Massachusetts, under the laws of which State such corporation was incorporated and where it had its domicile, and on the 27th day of November, 1905, such corporation was duly adjudged a bankrupt by such court and the complainant, who is the appellee here, was on such date duly appointed as trustee of such bankrupt corporation and duly qualified as such on the 27th day of December, 1905; that, after the execution of such deed and agreement and prior to the time such corporation was adjudged a bankrupt and while it remained in possession of such premises, Hull continued to advance money from time to time to such corporation, the exact amount being unknown to complainant but alleged to be approximately |12,000.00, all of which was applied by such corporation towards the extension and completion of the phosphate plant on such premises; that immediately upon the appointment of complainant as such trustee all the property of such corporation, including that described in the bill of which such corporation was in possession at the time of such'adjudication and of such appointment and qualification of complainant as trustee, became vested in him as such trustee and he became entitled to the possession thereof, but that, after the appointment and qualification of complainant as such trustee, “the defendant, Joseph Hull, instituted an action of ejectment in the Circuit Court of the United States for the Southern District of Florida against one N.

B. Childs and the said Port Tampa Phosphate Company, to which your orator was not a party, nor did he become a party, and in which no service was had upon the said Port Tampa Phosphate Company or any officer, agent or representative of the said Port Tampa Phosphate Company, and in which it did not appear, but in which, as your orator is informed and believes, the only service made was upon N. B.

Childs, a deputy sheriff of Polk County, Florida, in possession of the personal property on the said premises under certain writs of attachment issued out of the Circuit Court of Polk County, Florida, and in the said proceeding in the Circuit Court of the United States for the Southern District of Florida to which neither the said Port Tampa Phosphate Company nor your orator were made, or became, parties, the defendant, Joseph Hull, on or about the 3rd day of March, A.

D. 1906, secured a judgment by default and a final judgment purporting to award him possession of the said premises, and under the said judgment the defendant, Joseph Hull, entered into the possession thereof.” It would seem that the foregoing synopsis of the allegations of the bill will be sufficient to enable us to answer the question now under consideration. Other allegations of the bill will be adverted to later. We must now look at the exhibit to the bill. We find that such instrument was signed by Hull as well as by the Port Tampa Phosphate Company by H. W. Rowell, its President.

We pass over the informalities connected with the execution of such instrument which are readily apparent but there is no occasion to consider, since no point is attempted to be made thereon. However, see Margarum v. J. S. Christie Orange Co., 37 Fla. 165, 19 South. Rep. 637. We find, in brief, that such instrument contains a recital to the effect that whereas the Port Tampa Phosphate Company, under and by virtue of a certain resolution of its board of directors, had sold the property in question to Hull and caused the same to be conveyed to him by E. C. Stuart and C. G.

Meminger, the assignees of Boswell, and whereas Hull had agreed to sell back and reconvey such property to the Port Tampa Phosphate Company, at any time within four months from the date thereof, upon the payment to him of the sum of $13,404.77” and such other and further sums of money which may have been advanced or paid out by the said Hull, in the improvement or operation of said property, together with a profit of sixteen per cent. (16%) on any such sums so advanced or paid out, in consideration thereof, Hull bound himself, his executors, administrators and assigns, upon such payment to him of the sums of money just set forth above, to convey such property to such corporation, the same being set forth and particularly described.

Such instrument contains the following additional clause: “The Port Tampa Phosphate Company agrees that if it shall fail to exercise its right to repurchase said property within the time prescribed, this contract shall forthwith become void and of non-effect, and the said Joseph Hull shall own said properties free from any claim or demand of the said Port Tampa Phosphate Company.” It will be observed that nothing whatever is said in this instrument as to the possession of such property or the right of possession.

Is it not significant that the Port Tampa Phosphate Company continued to remain in possession of such property from the date of such instrument, the 9th day of June, 1905, until after it was adjudged a bankrupt in the month of November, 1905, and that Hull continued to advance money to it, which was applied toward the construction, extension and completion of the phosphate plant thereon?

If the absolute legal title to such property became vested in Hull by the execution of the deed to him by Boswell’s assignees, is it not a little singular that this instrument, with its rather peculiar phraseology, should have been executed contemporaneously with such deed and that nothing should be said therein about the possession or the right of possession? It will be observed from the description of the property in such instrument which forms an exhibit to the bill, that a portion thereof was personalty. As was said in Briggs v. Weston, 36 Fla. 629, text 633, 18 South.

Rep. 852, text 853, “It is the rule, then, in this State that when it is shown in case of an absolute sale of personal property that the vendor has continued in possession of the property and the vendee has in two ways assumed possession of the same, the burden rests upon the latter to show that the former’s possession is consistent with the deed, is unavoidable, temporary, or for the reasonable convenience of the purchaser.” Also see authorities there cited, including prior decisions of this court, especially Holliday v.

McKinne, 22 Fla. 153, wherein it was held thai “the retention of personal property by the vendor after a sale is prima facie evidence of fraud, and the evidence to rebut such presumption is an explanation of the retention by showing that it is consistent with the deed, or is unavoidable, or is temporary, or for the reasonable convenience of the owner.” Also see “Volusia County Bank v. Bertola, 44 Fla. 734, 33 South. Rep. 448. As to the retention of the possession of realty by the vendor it was held by this court in Neal v.

Gregory, 19 Fla. 356, that “the retention of the possession of land after absolute sale accompanied with the exercise of unequivocal acts of ownership over it is a badge of fraud for it is not in the usual course of business and indicates a secret trust for the debtor.

In case of such a sale and retention of possession accompanied by appropriation of the rents and profits and acts of ownership the burden of proof is upon the party asserting the existence of and payment of the consideration named in the deed, and claiming the benefits thereof to establish such facts.” Of course, these cited cases were dealing with the rights of creditors, but if such a transaction as is set forth in the instant case would be lawful, even as to creditors, if deemed and held a mortgage, but illegal as to them, if held to be an absolute sale, that fact or principle should be considered.

In a case of doubt, where the transaction is equivocal, the presumption is that the parties thereto had in contemplation what they could legally do and intended a lawful rather than an unlawful transaction. We should also bear in mind that the bill alleges that the property in question constituted the entire assets of the Port Tampa Phosphate Company and that the proposition of Hull was never submitted by the board of directors of such corporation to its stockholders.

It would seem that a board of directors of a corporation have not the right or power to make a sale of the entire assets of the corporation, unless authorized so to do by its stockholders. See 10 Cyc. 764 and 21 Amer. & Eng. Ency. of Law (2nd ed.) 863, 864, and authorities cited in notes. As we have already seen from the cited decisions of this court, in case of doubt the transaction will be held a mortgage.

Gross inadequacy of the consideration is another test which may be applied in determining whether a transaction was intended as a mortgage or an absolute or conditional sale, especially when coupled with the financial embarrassment of the grantor. See 1 Jones on Mortgages, § 329; 27 Cyc. 972 and 1014; Russell v. Southard, 12 Howard (U. S.) 139. We would also refer generally to the discussion and reasoning in Flagg v. Mann, 9 Fed. Cas. No. 4847, which case was approvingly cited by this court in Stockton v. National Bank of Jacksonville, 45 Fla. 590, text 600, 34 South. Rep. 897, text 900; Campbell v.

Dearborn, 109 Mass. 130, text 138 et seq.; Hassam v. Barrett, 115 Mass, 256; Plummer v. Ilse, 41 Wash. 5, 82 Pac. Rep. 1009. The respective counsel have cited a large number of authorities in their elaborate briefs dealing with these different points, but we deem it unnecessary to cite further authorities along this line in this opinion.

Suffice it to say that, after having made a careful investigation of the authorities and after mature deliberation, we are constrained to the conclusion that, under the allegations of the bill, tested as they are by demurrer, the deed from Boswell’s assignees to Hull taken in connection with the contemporaneous agreement executed by Hull and the Port Tampa Phosphate Company, must be deemed and held a mortgage, in accordance with the provisions of our statute, copied in full above.

We have not lost sight of the fact that the legal title to the property in question was never vested in the Port Tampa Phosphate Company, but that such corporation was only the equitable owner thereof, entitled to have the legal title vested in it by a proper conveyance upon the payment of the balance of the purchase money.

However, before this was done, being pressed for payment of such unpaid balance by the holders of the legal title, such corporation applied to Hull for a loan, which Hull agreed to advance upon the condition that the holders of the legal title conveyed the property direct to him, which was done. Strictly speaking, then, the assignees of Boswell were the vendors and not the Port Tampa Phosphate Company, but such corporation, the equitable owner, was in possession and, at its request, the holders of such legal title conveyed it to Hull, while such corporation continued to remain in possession.

We fail to see the difference in principle between this transaction and what would have existed had such corporation taken the legal title in its own name from such vendors and then executed a conveyance to Hull, and are of the opinion that the authorities which we have cited are just as much in point in one instance as the other. See Lindsay v. Matthews, 17 Fla. 575.

There is no question but that Stuart and Meminger, Boswell’s assignees, became divested of the legal title by their conveyance to Hull, so that the contention as to their being either proper or necessary parties to this litigation cannot be seriously entertained. The legal title, then took became vested in Hull, subject to the equitable ownership or title of the Port Tampa Phosphate Company.

However, such transactions as took place between Hull and such corporation, taken in their entirety, must be deemed and held a mortgage, as we have already seen, therefore, under the statute, “subject to the same rules of foreclosure and to the same fegulations, restraints and forms as are prescribed in relation to mortgages.” As is also provided in the next succeeding statute, which we copied in full above, “a mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” We also have a long line of decisions of this court construing this statute and holding in effect that “a mortgage is a specific lien on the land it covers, and a failure to comply with its conditions does not divest the mortgagor of the legal title, nor vest it in the mortgagee.” Berlack v.

Halle, 22 Fla. 236, S. C. 1 Amer. St. Rep. 185. We would also refer to the following cases: Brown v. Snell, 6 Fla. 741; McMahon v. Russell, 17 Fla. 698; Bush v. Adams, 22 Fla. 177, text 189; First National Bank of Florida v. Ashmead, 23 Fla. 379, 2 South. Rep. 657; Jordan v. Sayre, 24 Fla. 1, 3 South. Rep. 329; Seedhouse v. Broward, 34 Fla. 509, 16 South. Rep. 425; Coe v. Finlayson, 41 Fla. 169, 26 South. Rep. 704; Wylly-Gabbett Co. v. Williams, 53 Fla. 872, text 935, 42 South. Rep. 910, text 929.

By virtue of his appointment and qualification as trustee in bankruptcy of the Port Tampa Phosphate Company the complainant succeeded to and acquired all the title and rights of such corporation of, in and to the property in question. It is obvious, however, from the allegations of the bill that a court of law could not afford complainant a plain, adequate and complete remedy, so as to render a resort to a court of chancery unnecessary and improper. See Barnett v. Hickson, 52 Fla. 457, 41 South. Rep. 606.

As we have seen, neither the complainant nor the Port Tampa Phosphate Company ever was vested with the legal title to the property in question. This fact clearly differentiates the instant case from Brown v. Snell, 6 Fla. 741; Endel v. Walls, 16 Fla. 786; Berlack v. Halle, 22 Fla, 236, S. C. 1 Amer. St. Rep. 185; Ashmead v. Wilson, 22 Fla. 255, all of which are cited and relied upon by appellants to support their contention that the proper remedy for the complainant to pursue was an action at law.

Taking in connection with the absence of the legal title in the complainant the allegations in the bill as to the manner in which. Hull acquired the possession of such property and the conveyance by him to the Prairie Pebble Phosphate Company and the mortgage executed by it to the Savannah Trust Company, and the circumstances under which such conveyance and mortgage were executed, all of which were admitted by the demurrer, it is perfectly obvious why neither an action of ejectment nor any other action at law could give the complainant adequate relief.

We see no occasion for dwelling upon this point or citing further authorities. We think that it is also apparent from such allegations that both such Prairie Pebble Phosphate Company and Savannah Trust Company were proper, if not necessary, parties defendant. We see no useful purpose to be accomplished by a further prolongation of this opinion. Although we have declined to discuss the different errors assigned in detail, we have considered each and every of them and have given all the pleadings and briefs of counsel close study.

We appreciate the full and elaborate manner in which the points have been presented to us by the respective counsel, including the copious citations of authorities, but we do not think it advisable to enter upon a more detailed discussion of the points raised. What may develop in the further progress of the case we do not know. We find no reversible error in the interlocutory order overruling the two demurrers to the bill, therefore the same must be affirmed. Whitfield, C. J., and Cockrell, J., concur. Taylor, Hocker and Parkhill, JJ., concur in the opinion.