ON MOTION FOR REHEARING.
Evans, J.1. It is suggested by counsel for the plaintiff in error, that, in passing upon the issues presented for determination in this case, the court must have inadvertently overlooked the fact that the evidence appearing in the record conclusively shows that Lou Bonds entered into a contract of tenancy with Mrs. Brown, and was for that reason estopped, so long as she remained in possession of the premises under that contract, from disputing the title of her landlord. It is unquestionably true that, as a general rule, a tenant, by "entering under the landlord, . . admits his title, and the law will not permit him to assume an inconsistent position, either by attorning to anyone else as his landlord, or by claiming himself title to the premises,” even though he may have been in possession under a claim of ownership when the contract of tenancy was made (Johnson v. Thrower, 117 Ga. 1010), and the period during which he contracted to pay rent has expired (Bullard v. Hudson, 125 Ga. 393), since he must first surrender the possession he acquired from his landlord under the contract of tenancy. Grizzard v. Roberts, 110 Ga. 41 and cit. But this doctrine of equitable es.toppel is not of universal application. "Tenancy can not arise between debtor and creditor by a contract for rent, if the title on which the so-called tenancy rests is void for usury. In such case there is no estoppel upon the debtor to deny that the creditor is his landlord.” Tribble v. Anderson, 63 Ga. 32(4). “Estoppel is not applied to prevent inquiring into usury. If a deed will not estop, surely a note for rent will not estop, nor' will any contract of renting. Out of a title void for usury, and a contract of renting based thereon, no tenancy, no relation of landlord and tenant, will arise. The usury stalks like a pestilence through every form of contract, and poisons all it touches. Tenancy can no more grow out of an usurious title, where both are parts of the same scheme of usury, than a man can become his own tenant and be landlord to himself. There can be-no rent, and no right to rent.” Id. 56. In the present case tl^e plaintiff below, in her sworn petition and also in an affidavit used as evidence upon the hearing, pre*841sented the theory that she had merely given a security deed, infected with usury, and had subsequently obtained supplies from Mrs. Brown and other advances necessary to make a crop for the year 1904, but never became indebted to her in any other way. In our previous dealings with the case we have regarded this sworn contention on the part of the plaintiff as being in irreconcilable and painful conflict with the sworn contention of the defendant, set forth by way of answer and affidavit,- that there was an absolute sale of the land to her, and that subsequently the plaintiff remained in possession under a contract to pay rent, and the supplies and advances were made to her as a tenant, not as a debtor. In support •of this contention of the defendant, she produced a writing signed by Lou Bonds and purporting to create a landlord’s lien in favor of the defendant for supplies furnished to make a crop for 1904, and also introduced affidavits to the effect that there was an oral contract of renting for the year 1905, and the plaintiff had occupied the premises as a tenant. This evidence was not directly met. by any counter-showing or denial that the plaintiff had attorned to the defendant as landlord, but counsel for the plaintiff rested her case upon the statements made in her petition and affidavit that the only relation which had ever existed between her and the defendant was that of debtor and creditor, which relation arose out of a usurious transaction. Even if the presiding judge was, under the evidence submitted upon this particular point, constrained to find that the plaintiff had consented and agreed to attorn and pay rent to the defendant, it would by no means follow that the plaintiff was not entitled to the relief sought, if the court was satisfied that usury had been exacted and the deed relied on by the defendant was given as security for a loan. As has been seen, the bare fact that the plaintiff may have attorned to the defendant would not necessarily estop the former from prosecuting her action, although still in possession of the land. We are still of the opinion that the controlling question in the case was whether or not the parties entered into a usurious agreement, and that the evidence authorized the presiding judge to determine this question in favor of the plaintiff.
2. We also adhere to the view that, no estoppel by judgment being shown, the court properly considered the enforcement of the liens as in fieri. There'is not in this ease, as in Webster v. Dundee Mortgage Co., 93 Ga. 278, any reason for regarding a verdict as the *842equivalent of a judgment, because the parties, acting under an agreement made after the verdict was taken, so treated it, and lived up to the understanding between them both at the trial in the superior court and on the hearing before this court. The case of Burns v. Lewis, 86 Ga. 591, is cited as authority for the proposition that there are some exceptions to the general rule that a plea of res adjudicata can not be predicated upon a verdict upon which no judgment has been entered. The decision in that case was put upon the peculiar wording of the constitution of 1868 in declaring what should be the effect of a second verdict in a suit for divorce. We can not concur with counsel in the view that the verdict of a jury in a justice’s court ought to be given the same evidentiary force, as there “is no statute authorizing a justice to enter judgment upon the verdict of a jury, no fee is prescribed for such service on his part, no provision for reviewing his action should his judgment not follow the verdict.” At public expense, a docket must be furnished the justice (Civil Code, §4080), and it is his duty to enter upon that docket “all causes brought before” him, sjoecifying the names of the parties and showing the returns of the officer, and to also make therein “the entry of,the judgment, specifying its amount and the day of its rendition.” Id. §4082(6). It is upon this docket, not upon the summons, that the judgment is to be entered. Ramsey v. Cole, 84 Ga. 147. The justice is required by law to return his docket, “when full, together with all the papers connected with the cases therein disposed of, . . to the clerk of the superior court, whose duty it shall be to carefully ñle away and keep” the same in his office. Civil Code, §4081. In addition to the fee allowed a justice for trying a case without a jury or presiding at the trial of an appeal, he is allowed by law a fee of 35 cents for “entering up judgment in each case.” Id. §5403. While his court is not a court of record, provision has been made for the keeping of a docket which will show the net results of all cases tried in his court, and upon him devolves the duty of entering upon that docket all judgments rendered in every case, whether based upon his decision as a trior of the law and the facts or upon the verdict of a jury. It is not contemplated that he shall keep „up the entries on his docket only until the stage of appeal to a jury has been reached, and then abandon all efforts to keep a record of what is done in his court while he presides over the trial of a case *843before a jury. It is to the-entry on his docket of judgment against the losing party, not to any entry on the summons of what purports to be the verdict of a jury, that all must look in determining what was the result of the trial. By such entry the justice declares that a verdict was in fact returned and received such as warranted judgment against the party designated as the one cast in the suit; and if the judgment does not follow the verdict, there is ample provision of law for correcting the error by writ of certiorari. The justice has not, of course, any power to grant a new trial. Boroughs v. White, 69 Ga. 844; McCook v. Moore, 78 Ga. 322. But either party, if dissatisfied with the verdict of the jury, has the right to a writ of certiorari, in order that the judge of the superior court may exercise a wise discretion in granting or refusing a new trial. Civil Code, §4149. The writ of certiorari must be applied for “within thirty days after the final determination of the case in which the error is alleged to have been committed.” Id. §4642. When it is sought to review the finding of the jury, the writ must be applied for within that period after the verdict is returned, not within thirty days “from the judgment which the justice may enter thereon.” Western & Atlantic R. v. Carson, 70 Ga. 390. This is true for the reason that the judgment may not be entered on the same day the verdict is received, and it is to the finding of the jury that exception is taken, not to the judgment which follows the verdict; the certiorari is merely the equivalent of a- motion for a new trial based on the grounds that the verdict is contrary to law and not in accordance with the evidence. It is not essential that the entry of the judgment be put upon the docket-upon the same day the verdict is rendered (Ryals v. McArthur, 92 Ga. 378), but such is the better practice, in order that the docket may disclose the information it is intended to furnish to all concerned and afford evidence which is available as proof of the outcome of the trial. The decision in W. & A. R. v. Carson, supra, does not remotely suggest the idea that the verdict of a jury in a justice’s court is to be treated as a final judgment, because the justice has no power to override it, but, on the contrary, this court in that case gave recognition to the practice of entering up judgment on the verdict which was pursued by the justice. Much uncertainty and confusion would result if the jury’s finding were left in the air or entered on the *844papers in the case merely, which are subject to loss and destruction and may be tampered with, instead of being proclaimed by a judgment of the court entered upon the docket, to which the public may readily refer. In thus entering up judgment, we think the magistrate performs one of those duties contemplated by law (Civil Code, §4082) “which necessarily appertain” to his office. The verdict of a jury in a justice’s court has no more finality than one returned by a jury in the superior court. The procedure provided for setting it aside is different; that is all.
Note.
The absences of Justices, hereinbefore noted, were due to providential causes.
A few cases where Justice Atkinson did not preside were argued before he came upon the bench of this court.