Hines, J.
1. The defendant in error moves to dismiss the bill of exceptions on the ground that the evidence was not properly briefed, the brief consisting in part of a transcript of the stenographer’s notes of the evidence in full and of various documents and judicial proceedings in full. Held, that as there are questions which can be decided without reference to the evidence, the motion to dismiss the bill of exceptions will be denied. Miller v. Hines, 145 Ga. 616 (89 S. E. 689).
2. The petition in this case set forth a cause of action, and was good against a general demurrer.
3. The court below properly overruled the grounds of special demurrer to the petition.
(a) It is only necessary to set out such writings in the petition, or to attach them as exhibits, if they constitute the cause of action sued upon or the basis of the relief prayed. East Atlanta Land Co. v. Mower, 138 Ga. 380 (2) (75 S. E. 418).
(5) The point that these paragraphs did not state the substance of the writings or proceedings therein referred to with sufficient clearness to inform the defendant of their character is not raised by these special demurrers. —
(e) Voluminous pleadings and records of the same court, referred to by the plaintiff in his petition in a pending suit, may be considered by the court as if they were attached as exhibits, although generally such pleadings and records should be attached as exhibits to the complaint. Equity Rule 3, Civil Code (1910), § 6321; Demere v. Scranton, 8 Ga. 43; Holliday v. Riordan, 12 Ga. 417; Patterson v. Turner, 62 Ga. 674; Graham v. Dahlonega &c. Co., 71 Ga. 296; Millbank v. Penniman, 73 Ga. 136; Lyons v. Planters’ Loan & Savings Bank, 86 Ga. 485 (12 S. E. 882, 12 L. R. A. 155); Moody v. Muscogee Mfg. Co., 134 Ga. 721, 730 (68 S. E. 604, 20 Ann. Cas. 301).
(d) Whether such pleadings and records should have been attached as exhibits or not, the right result of a case on its merits will not be disturbed because such documents were not annexed as exhibits. Lyons v. Planters’ Bank, supra.
(e) Other grounds of special demurrer to the petition are not insisted on in the brief of counsel for the plaintiff in error, and for this reason we treat them as abandoned. It follows from what is stated above that the judge did not err in overruling the special demurrers to the petition.
4. The court charged the jury as follows: “Where as to lands purchased by the husband with funds belonging to his wife,'to which he took title in his own name, a resulting trust immediately arises in favor of the wife, she can not assert ownership thereof as against a third person, who, in ignorance and without notice of the secret equity and on faith of the husband’s apparent title, makes to him in good faith a loan secured by a mortgage covering the land so held in trust. Under such circumstances the mortgagee, to the extent of his interest in the lands mortgaged, stands upon the same footing as a bona fide purchaser without notice.” The defendant, Minnie L. Steele, excepts to this charge, upon the grounds: (1) It was not adjusted to the pleadings and evidence in the case; (2) the wife could not be estopped from as[121]*121serting lier title to the lands by any act of her husband, unless such act was authorized by her or she had knowledge thereof; and (3) a married woman can not be estopped from asserting her rights as owner of the property, except by.her own acts, and the evidence in this case shows that she did nothing whatever to induce Pitts, as trustee, to make the loan, and made no representation as to the title, and did not acquiesce in any representation made by her husband. Held: Where a husband and wife are in possession of land and the record title thereto is in the husband, who borrows money from another and executes his deed to such land to the lender to secure the money so borrowed, the title of such lender is superior to the equitable title of the wife, of which the lender had no notice, growing out of the fact that the wife’s money had paid for the land and that the title thereto should have been conveyed to her instead of to her husband. Zimmer v. Dansby, 56 Ga. 79; Lewis v. Equitable Mortgage Co., 94 Ga. 572 (3) (21 S. E. 224); Parker v. Barnesville Savings Bank, 107 Ga. 650 (34 S. E. 365); Austin v. Southern Home &c. Asso., 122 Ga. 439 (4) (50 S. E. 382); Talley v. Mozley, 149 Ga. 529 (101 S. E. 120). In Dodd v. Bond, 88 Ga. 355 (14 S. E. 581), the holder of the legal title had conveyed it to the holder of the equitable title before the creditor had obtained any lien or judgment upon the property. In Latham v. Latham, 98 Ga. 477 (25 S. E. 505), the purchaser from the husband took with full knowledge of the wife’s equity. In Hunt v. Doyal, 128 Ga. 416 (57 S. E. 489), the husband conveyed to the wife property in recognition of her equitable right thereto growing out of the fact that it had been purchased with her money. This court held that in doing so he performed both a legal and a moral duty, but that his conveyance to the wife would be subject to the rights of creditors who had given credit to the husband on the faith of his ownership of the property and had been thereby misled. Other eases relied on by counsel for the wife in this ease are easily distinguishable from the present case. It follows from the above ruling that the court did not err in the above charge.
5. The court charged the jury as follows: “In considering the testimony, it is your duty to reconcile the evidence without imputing perjury to any witness, if you can do so. The rules of law are that you look to the witness [witnesses] having the best opportunity to know the facts about which they testify and the least inducement to swear falsely.” The defendant,- Minnie L. Steele, excepted to this charge on the ground that it is an incorrect statement of the law. Held, that this charge was misleading and erroneous. In the first place, it omitted the qualification that the witnesses must be of equal credibility. L. & N. R. Co. v. Rogers, 136 Ga. 674 (3) (71 S. E. 1102); N., C. & St. L. Ry. v. Paris, 138 Ga. 864 (76 S. E. 357); Alabama Great Southern R. Co. v. Brock, 139 Ga. 248 (77 S. E. 20). Besides, the language, “the rules of law are that you look to the witness having the best opportunity to know the facts about which they testify and the least ’inducement to swear falsely,” even if this instruction had been accompanied with the foregoing qualification, would have been erroneous, because it was calculated to induce the jury to believe that they must believe such witness when the law is that they may believe him. This error would require the grant of a new trial but for the conclusion reached by us that a finding in [122]*122favor of the plaintiff was demanded under the pleadings and the evidence.
6. The court did not err in failing to charge the jury that “This is in effect a suit in ejectment; and if the plaintiff recovers, he must recover upon the strength of his own title, and not upon any weakness of his adversary’s.”
7.
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Hines, J.
1. The defendant in error moves to dismiss the bill of exceptions on the ground that the evidence was not properly briefed, the brief consisting in part of a transcript of the stenographer’s notes of the evidence in full and of various documents and judicial proceedings in full. Held, that as there are questions which can be decided without reference to the evidence, the motion to dismiss the bill of exceptions will be denied. Miller v. Hines, 145 Ga. 616 (89 S. E. 689).
2. The petition in this case set forth a cause of action, and was good against a general demurrer.
3. The court below properly overruled the grounds of special demurrer to the petition.
(a) It is only necessary to set out such writings in the petition, or to attach them as exhibits, if they constitute the cause of action sued upon or the basis of the relief prayed. East Atlanta Land Co. v. Mower, 138 Ga. 380 (2) (75 S. E. 418).
(5) The point that these paragraphs did not state the substance of the writings or proceedings therein referred to with sufficient clearness to inform the defendant of their character is not raised by these special demurrers. —
(e) Voluminous pleadings and records of the same court, referred to by the plaintiff in his petition in a pending suit, may be considered by the court as if they were attached as exhibits, although generally such pleadings and records should be attached as exhibits to the complaint. Equity Rule 3, Civil Code (1910), § 6321; Demere v. Scranton, 8 Ga. 43; Holliday v. Riordan, 12 Ga. 417; Patterson v. Turner, 62 Ga. 674; Graham v. Dahlonega &c. Co., 71 Ga. 296; Millbank v. Penniman, 73 Ga. 136; Lyons v. Planters’ Loan & Savings Bank, 86 Ga. 485 (12 S. E. 882, 12 L. R. A. 155); Moody v. Muscogee Mfg. Co., 134 Ga. 721, 730 (68 S. E. 604, 20 Ann. Cas. 301).
(d) Whether such pleadings and records should have been attached as exhibits or not, the right result of a case on its merits will not be disturbed because such documents were not annexed as exhibits. Lyons v. Planters’ Bank, supra.
(e) Other grounds of special demurrer to the petition are not insisted on in the brief of counsel for the plaintiff in error, and for this reason we treat them as abandoned. It follows from what is stated above that the judge did not err in overruling the special demurrers to the petition.
4. The court charged the jury as follows: “Where as to lands purchased by the husband with funds belonging to his wife,'to which he took title in his own name, a resulting trust immediately arises in favor of the wife, she can not assert ownership thereof as against a third person, who, in ignorance and without notice of the secret equity and on faith of the husband’s apparent title, makes to him in good faith a loan secured by a mortgage covering the land so held in trust. Under such circumstances the mortgagee, to the extent of his interest in the lands mortgaged, stands upon the same footing as a bona fide purchaser without notice.” The defendant, Minnie L. Steele, excepts to this charge, upon the grounds: (1) It was not adjusted to the pleadings and evidence in the case; (2) the wife could not be estopped from as[121]*121serting lier title to the lands by any act of her husband, unless such act was authorized by her or she had knowledge thereof; and (3) a married woman can not be estopped from asserting her rights as owner of the property, except by.her own acts, and the evidence in this case shows that she did nothing whatever to induce Pitts, as trustee, to make the loan, and made no representation as to the title, and did not acquiesce in any representation made by her husband. Held: Where a husband and wife are in possession of land and the record title thereto is in the husband, who borrows money from another and executes his deed to such land to the lender to secure the money so borrowed, the title of such lender is superior to the equitable title of the wife, of which the lender had no notice, growing out of the fact that the wife’s money had paid for the land and that the title thereto should have been conveyed to her instead of to her husband. Zimmer v. Dansby, 56 Ga. 79; Lewis v. Equitable Mortgage Co., 94 Ga. 572 (3) (21 S. E. 224); Parker v. Barnesville Savings Bank, 107 Ga. 650 (34 S. E. 365); Austin v. Southern Home &c. Asso., 122 Ga. 439 (4) (50 S. E. 382); Talley v. Mozley, 149 Ga. 529 (101 S. E. 120). In Dodd v. Bond, 88 Ga. 355 (14 S. E. 581), the holder of the legal title had conveyed it to the holder of the equitable title before the creditor had obtained any lien or judgment upon the property. In Latham v. Latham, 98 Ga. 477 (25 S. E. 505), the purchaser from the husband took with full knowledge of the wife’s equity. In Hunt v. Doyal, 128 Ga. 416 (57 S. E. 489), the husband conveyed to the wife property in recognition of her equitable right thereto growing out of the fact that it had been purchased with her money. This court held that in doing so he performed both a legal and a moral duty, but that his conveyance to the wife would be subject to the rights of creditors who had given credit to the husband on the faith of his ownership of the property and had been thereby misled. Other eases relied on by counsel for the wife in this ease are easily distinguishable from the present case. It follows from the above ruling that the court did not err in the above charge.
5. The court charged the jury as follows: “In considering the testimony, it is your duty to reconcile the evidence without imputing perjury to any witness, if you can do so. The rules of law are that you look to the witness [witnesses] having the best opportunity to know the facts about which they testify and the least inducement to swear falsely.” The defendant,- Minnie L. Steele, excepted to this charge on the ground that it is an incorrect statement of the law. Held, that this charge was misleading and erroneous. In the first place, it omitted the qualification that the witnesses must be of equal credibility. L. & N. R. Co. v. Rogers, 136 Ga. 674 (3) (71 S. E. 1102); N., C. & St. L. Ry. v. Paris, 138 Ga. 864 (76 S. E. 357); Alabama Great Southern R. Co. v. Brock, 139 Ga. 248 (77 S. E. 20). Besides, the language, “the rules of law are that you look to the witness having the best opportunity to know the facts about which they testify and the least ’inducement to swear falsely,” even if this instruction had been accompanied with the foregoing qualification, would have been erroneous, because it was calculated to induce the jury to believe that they must believe such witness when the law is that they may believe him. This error would require the grant of a new trial but for the conclusion reached by us that a finding in [122]*122favor of the plaintiff was demanded under the pleadings and the evidence.
6. The court did not err in failing to charge the jury that “This is in effect a suit in ejectment; and if the plaintiff recovers, he must recover upon the strength of his own title, and not upon any weakness of his adversary’s.”
7. The court proceedings referred to in paragraph (2) of the statement of facts were properly admitted to show the title of petitioner to the note and security deed given by the defendant, J. W. Steele, to Pitts as trustee.
(а) Said record was properly admitted because it constituted the plaintiff’s title to said note and security deed and one of the muniments of his title to the land in controversy, although the defendants were not parties to the record. Judgments and decrees are not only evidence of the fact of their rendition, but of all of the legal consequences resulting from that fact, whosoever may be the parties to the suit in which they are offered in evidence. Wardlaw v. McNeill, 106 Ga. 29 (31 S. E. 785).
(t) The will of testator being attached as an exhibit to the petition in said proceedings, the whole proceedings, including said will, were properly admitted by the trial judge.
(c) The fact that the guardian ad litem for the minors was appointed by the court prior to the time such minors were served with the petition and process embraced in the foregoing proceedings did not render said proceedings inadmissible in evidence, it appearing that the guardian ad litem, after the minors were served, acted in their behalf. Civil Code (1910), § 5439.
8. The proceedings, the substance of which is set out in paragraph (3) of the statement of facts, were relevant and were properly admitted to show that Pitts had been appointed trustee of the trust estate created under the will of E. C. Graves.
(a.) Said proceedings were not inadmissible because their admission was in effect to get in evidence the will of testator, since said will was a part of said proceedings and was properly admissible as such.
(б) Said proceedings were properly admitted, although the defendants were not parties thereto. Wardlaw v. McNeill, supra.
(c) Said proceedings were not inadmissible because begun and ended in vacation, and because no process had been issued on the petition seeking the appointment of the trustee, and because the same was not returnable in term time; the judge of the superior court of each county having the power, either in term or at chambers, on petition by all the beneficiaries in the instrument creating the trust who have arrived at years of discretion, and on proper notice to the trustee if there be one residing in this State, to appoint trustees (Civil Code, § 3744), and to do this without a plenary suit in equity (§ 5436).
(d) The trust estate being located in the County of Polk, and all of the beneficiaries thereof in esse being residents of that county, the superior court of said county had jurisdiction to entertain these proceedings and to appoint Pitts trustee of the estate, he having been previously appointed trustee by the Massachusetts court in lieu of the trustee appointed under the will, who had resigned. In Linton v. Shaw, 95 Ga. [123]*123683 (22 S. E. 693), this court held: “Where all the beneficiaries of a trust estate, consisting of both realty and personalty in the hands of a trustee residing in this State, are citizens of another State, it is within the power' and jurisdiction of the superior court of the trustee’s residence, exercising its equitable powers, upon the application of these beneficiaries, to render a decree authorizing them to apply to the proper court in the State of their residence for the appointment of a trustee to take charge of the trust estate for their benefit, and to provide that upon his appointment the Georgia trustee shall convert the real estate into cash and deliver the same, together with the personalty belonging to the trust estate, already in his hands, to the foreign trustee.” On like principle, where a trust estate, created under a foreign will, is in this State without a trustee to manage it, we see no reason why a court of equity in this State can not appoint a' trustee upon the application of all the beneficiaries who are sui juris, to which application minor beneficiaries are made parties and represented by a guardian ad litem. On this subject see Bradstreet v. Butterfield, 129 Mass. 339; Thiebaud v. Dufour, 54 Ind. 320; Jones v. Jones, 8 Misc. 660 (30 N. Y. Supp. 177).
No. 4644.
March 11, 1925.
(e) The executor of the will of testator and the trustee named therein for ‘ this estate were not necessary parties to said proceedings.
{f) The fact that the guardian ad litem was appointed for the minors before service of said petition on them did not render said proceedings inadmissible.
((/) Conceding, but not deciding, that the minor beneficiaries should have been served with copies of said proceedings, and that lack of service on them rendered the proceedings invalid as to them, the decree rendered in the .proceedings mentioned in the seventh headnote above, to which they were parties and in which they were served with copies of the petition and process, and wherein said trustee was sued as such, woxxld conclude them from disputing the legality of the appointment of said trustee in the proceedings dealt with in this headnote.
9. Applying the above rulings, the trial judge did not err in refusing to grant a new trial. Judgment affirmed.
All the Justices concur.
M. B. Eubanks, for plaintiff in error. Bunn & Trawick, contra.