PARDEE, Circuit Judge.
An earlier decision of this case has been prevented by sickness among the judges, and an elaborate opinion is prevented by the approaching recess of the court. The facts of the case are fully stated in the opinion of the trial judge on page 175 to the middle of page 187 of the transcript, except that the following, which appears to have been accidentally omitted in the statement of the case, should be appended to the agreement, to wit:
“The above agreement having been entered into at night, and after banking hours, and to-morrow being a legal holiday, on which all banks will be closed, we agree that the same shall be filed with L. M. Erwin, deputy clerk of the circuit court of the United States for the southern district of Georgia, and that no decree shall be rendered as therein agreed until the $8,750 shall be paid, and that immediately after such payment this agreement shall be delivered to W. E. Simmons, and a decree taken.
“This December 31st, 1890.
“[Signed] W. E. Simmons,
“Attorney at Law for the New England Mortgage Security Company and J.
P. P. Brewster.
“Bacon & Rutledge,
“Minter Wimberly,
“Attorneys for A. P. Tarver.”
Assuming tbat on a petition for a survey ordered in the decree, and for a writ of assistance to execute the final decree rendered at a former term of the court, Mrs. Tarver can attack by answer and cross bill the decree for error, fraud, or misrepresentation, and that the averments in the answer and in the cross bill were properly pleaded, and must be taken as true, we agree with the learned judge of the circuit court that at the same time the court must consider them in connection with the record wherein it makes plain the intention of the parties. It cannot be disputed that in entering into the agreement which is the basis of the final decree in the case Mrs. Tarver was fully advised of all the terms and stipulations thereof, and acted with full knowledge, and with the advice and counsel of able and eminent lawyers, and that in regard to the matter she was advised by the chancellor. It is not to be conceived that under such circumstances she was deceived or misled with regard to the terms and stipulations of the agreement she entered into. In fact, a careful reading of her cross bill shows that she does not at this time make any distinct and specific averment sufficient to show that she was misled. By the agreement she received the sum of $8,750 in cash. In resisting the execution of the decree, and in seeking to prevent her forced compliance therewith, she makes no offer or suggestion to return the said sum; much less does she pay or tender it in court.
The answer and cross bill in the case show that the facts 'she deals with are in relation to agreements, promises, and representations contemporaneous with the agreement itself, and not incorporated therein, or in relation to assurances given by Thomas P. Stovall subsequent to the agreement that the sale of the Wimberly lands, as then advertised, should take place. In short, we find that the facts properly pleaded in the answer and cross bill fall far short of presenting a case sufficient to warrant a court of equity in setting [673]*673aside or modifying the final decree based npon the agreements of the parties, or from enjoining the execution of the decree until the appellants shall do and perform some matter or thing not specifically provided for in said decree. The final decree which was entered in pursuance of the agreement with Mrs. Tarver, with full knowledge and under the advice of counsel, and under which she holds at this time, without offer to return, the sum of $8,750, provides:
“And it shall he further decreed that the said ,T. JB\ F. Brewster is entitled to the immediate possession of all of said lands, except the six hundred and filly acres known as the ‘Old Homestead,’ or ‘Hunter Place.’ before mentioned, subject to the contract and agreements heretofore entered into in relation thereto between said Brewster, Stovall, and the Uryon Real-Estate Trust Company; and that process may forthwith issue to pAC said Brewster in possession of same; and that the said Annie P. Tarver and William B. Tarver shall forthwith vacate the house and premises now occupied by them by leave of the court heretofore granted, and shall surrender all possession, title, interest, and claim of, in, or to any and all of said lands except said six hundred and fifty acres of said Wimberly place; but that said ,T. If. I'1. Brewster and said Union Iteal-Estate Trust Company shall execute a deed relinquishing to said Annie P. Tarver, or to whomsoever she may designate in wi'iting, all their right, title, .and claim in or to the said six hundred and fifty acres known as the ‘Old Homestead,’ or ‘Hunter Place,’ the same to be surveyed and platted so as to include the piece of woodland next to Tar-versville, and run off in one body, in such shape .as Mrs. Tarver may direct. And that ii; shall he further decreed that all the parties to said proceedings in said court shall pay the fees of their own respective solicitors, and that no costs shall he taxed therefor.”
In our opinion, Mrs. Tarver shows no legal or equitable ground against the execution of this decree, and ought not to he permitted to have an injunction restraining the execution of the decree until the appellants shall do or perform some matter not specified in the decree, and, so far as the record goes, of very doubtful agreement elsewhere.
The only proceeding pending in the court at the time of the filing of the intervention of H. S. Wimberly was the petition of the appellants for a survey of the 650 acres, as provided in the final decree, so that the appellants could make the deed in conformity with the terms of the decree. Neither the title nor possession of the land in which said Wimberly claims an equity could have been affected in any degree by the determination of the issue thus raised, nor could any decree rendered he binding on'Mm. It is very doubtful whether he had any right to intervene in the case. The deed of March 14, 1882, from H. S. Wimberly to John It. Wimberly, was a warranty deed, absolute on its face, and the intervener relies solely upon an alleged oral understanding to reconvey, and upon his alleged continued possession. Section 1950 of the Code of Georgia is as follows:
“To make the following obligations binding on the promisor, the promise must be in writing, signed by the party to he charged therewith, or by some person by him lawfully authorized. 1st: A promise by an executor, administrator, guardian or trustee to answer damages out of his own estate. 2d: A promise to answer for the debt, default or miscarriage of another. 3d: Any agreement made npon consideration of marriage except marriage articles as hereinbefore provided. 4th: Any contract for sale of lands, or any [674]*674interest in or concerning them. 5th: Any agreement that is not to he performed within one year from the making thereof.”
Section 3800 of the Code of Georgia provides:
“That parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument.”
It is contended, however, that nnder the circumstances of the case parol evidence is competent to change the character of the deed of 1882 from H. S. Wimberly to John R.
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PARDEE, Circuit Judge.
An earlier decision of this case has been prevented by sickness among the judges, and an elaborate opinion is prevented by the approaching recess of the court. The facts of the case are fully stated in the opinion of the trial judge on page 175 to the middle of page 187 of the transcript, except that the following, which appears to have been accidentally omitted in the statement of the case, should be appended to the agreement, to wit:
“The above agreement having been entered into at night, and after banking hours, and to-morrow being a legal holiday, on which all banks will be closed, we agree that the same shall be filed with L. M. Erwin, deputy clerk of the circuit court of the United States for the southern district of Georgia, and that no decree shall be rendered as therein agreed until the $8,750 shall be paid, and that immediately after such payment this agreement shall be delivered to W. E. Simmons, and a decree taken.
“This December 31st, 1890.
“[Signed] W. E. Simmons,
“Attorney at Law for the New England Mortgage Security Company and J.
P. P. Brewster.
“Bacon & Rutledge,
“Minter Wimberly,
“Attorneys for A. P. Tarver.”
Assuming tbat on a petition for a survey ordered in the decree, and for a writ of assistance to execute the final decree rendered at a former term of the court, Mrs. Tarver can attack by answer and cross bill the decree for error, fraud, or misrepresentation, and that the averments in the answer and in the cross bill were properly pleaded, and must be taken as true, we agree with the learned judge of the circuit court that at the same time the court must consider them in connection with the record wherein it makes plain the intention of the parties. It cannot be disputed that in entering into the agreement which is the basis of the final decree in the case Mrs. Tarver was fully advised of all the terms and stipulations thereof, and acted with full knowledge, and with the advice and counsel of able and eminent lawyers, and that in regard to the matter she was advised by the chancellor. It is not to be conceived that under such circumstances she was deceived or misled with regard to the terms and stipulations of the agreement she entered into. In fact, a careful reading of her cross bill shows that she does not at this time make any distinct and specific averment sufficient to show that she was misled. By the agreement she received the sum of $8,750 in cash. In resisting the execution of the decree, and in seeking to prevent her forced compliance therewith, she makes no offer or suggestion to return the said sum; much less does she pay or tender it in court.
The answer and cross bill in the case show that the facts 'she deals with are in relation to agreements, promises, and representations contemporaneous with the agreement itself, and not incorporated therein, or in relation to assurances given by Thomas P. Stovall subsequent to the agreement that the sale of the Wimberly lands, as then advertised, should take place. In short, we find that the facts properly pleaded in the answer and cross bill fall far short of presenting a case sufficient to warrant a court of equity in setting [673]*673aside or modifying the final decree based npon the agreements of the parties, or from enjoining the execution of the decree until the appellants shall do and perform some matter or thing not specifically provided for in said decree. The final decree which was entered in pursuance of the agreement with Mrs. Tarver, with full knowledge and under the advice of counsel, and under which she holds at this time, without offer to return, the sum of $8,750, provides:
“And it shall he further decreed that the said ,T. JB\ F. Brewster is entitled to the immediate possession of all of said lands, except the six hundred and filly acres known as the ‘Old Homestead,’ or ‘Hunter Place.’ before mentioned, subject to the contract and agreements heretofore entered into in relation thereto between said Brewster, Stovall, and the Uryon Real-Estate Trust Company; and that process may forthwith issue to pAC said Brewster in possession of same; and that the said Annie P. Tarver and William B. Tarver shall forthwith vacate the house and premises now occupied by them by leave of the court heretofore granted, and shall surrender all possession, title, interest, and claim of, in, or to any and all of said lands except said six hundred and fifty acres of said Wimberly place; but that said ,T. If. I'1. Brewster and said Union Iteal-Estate Trust Company shall execute a deed relinquishing to said Annie P. Tarver, or to whomsoever she may designate in wi'iting, all their right, title, .and claim in or to the said six hundred and fifty acres known as the ‘Old Homestead,’ or ‘Hunter Place,’ the same to be surveyed and platted so as to include the piece of woodland next to Tar-versville, and run off in one body, in such shape .as Mrs. Tarver may direct. And that ii; shall he further decreed that all the parties to said proceedings in said court shall pay the fees of their own respective solicitors, and that no costs shall he taxed therefor.”
In our opinion, Mrs. Tarver shows no legal or equitable ground against the execution of this decree, and ought not to he permitted to have an injunction restraining the execution of the decree until the appellants shall do or perform some matter not specified in the decree, and, so far as the record goes, of very doubtful agreement elsewhere.
The only proceeding pending in the court at the time of the filing of the intervention of H. S. Wimberly was the petition of the appellants for a survey of the 650 acres, as provided in the final decree, so that the appellants could make the deed in conformity with the terms of the decree. Neither the title nor possession of the land in which said Wimberly claims an equity could have been affected in any degree by the determination of the issue thus raised, nor could any decree rendered he binding on'Mm. It is very doubtful whether he had any right to intervene in the case. The deed of March 14, 1882, from H. S. Wimberly to John It. Wimberly, was a warranty deed, absolute on its face, and the intervener relies solely upon an alleged oral understanding to reconvey, and upon his alleged continued possession. Section 1950 of the Code of Georgia is as follows:
“To make the following obligations binding on the promisor, the promise must be in writing, signed by the party to he charged therewith, or by some person by him lawfully authorized. 1st: A promise by an executor, administrator, guardian or trustee to answer damages out of his own estate. 2d: A promise to answer for the debt, default or miscarriage of another. 3d: Any agreement made npon consideration of marriage except marriage articles as hereinbefore provided. 4th: Any contract for sale of lands, or any [674]*674interest in or concerning them. 5th: Any agreement that is not to he performed within one year from the making thereof.”
Section 3800 of the Code of Georgia provides:
“That parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument.”
It is contended, however, that nnder the circumstances of the case parol evidence is competent to change the character of the deed of 1882 from H. S. Wimberly to John R. Wimberly into a mortgage or deed of trust, under which H. S. Wimberly really held, as of right, the equity of redemption. If it is admitted that this was true at the time of the deed, still the subsequent transfer and assignment of 1886, in writing, by J. R. Wimberly to Mrs. Tarver, with the admitted consent, if not procurement, of Henry S. Wimberly, of the equity of redemption, and the acceptance by Henry S. Wimberly of Mrs. Tarver’s note in payment therefor, would seem to have divested all right and title of H. S. Wimberly. If this be so, it is clear that the alleged rescission afterwards of this transfer of the equity of redemption cannot be set up by parol. It was an independent transaction , in regard to the land, and the proposition to establish such rescission and the continued equity in H. S. Wimberly by parol is far from being a proposition to show by parol that an equitable interest was reserved to H. S. Wimberly at the time he parted with the legal title, or that the absolute deed then executed was intended to operate as a mortgage. If we go further, and admit, for the purposes of the case, that there is some equity of redemption still left in Henry S. Wimberly, still, as the validity of the debt of $5,000 secured by the deed of J. R. Wimberly to Charles L. Flint, and now amounting to about $9,000, and wholly unpaid, is admitted, then, under sections 1969 and 1970 of the Code of Georgia, which provide that a deed with a bond to reconvey passes the title to the vendee until his debt is paid, it is clear that without payment of the debt the said H. S. Wimberly can assert no title to the land in controversy cognizable either in a court of law or a court of equity.
The decree of July 25, 1898, appealed from, restraining J. F. F. Brewster, the New England Mortgage Security Company, and the Union Real-Estate Trust Company from taking out and having executed a writ of assistance on the decree of January 10, 1891, should be reversed, with costs, and the cause remanded to the circuit court for such further proceedings not inconsistent with the views herein expressed; and it is so ordered.