ON MOTION FOR. REHEARING.
Jenkins, Justice.1. The defendants in error, plaintiffs in the trial court and the intervenors claiming under her, contend in their motion for rehearing that this court “failed to take into consideration circumstances cinconsistent with the testimony/” of the witness as to the usury, “which the special [examiner] in hearing and examining the testimony produced at the hearing considered *109in discrediting the testimony” of the witness. It is observed that the record fails to show any such contention before the examiner, the trial judge, or in this court in the original brief, or until the filing of supplemental and reply briefs; nor was the contention stressed until the present motion. Before the examiner and subsequently the movants appear to have recognized that the stress of their case fell on whether the defendants were precluded from attacking as usurious the security deed on which plaintiffs’ title chiefly rested; whether the testimony as to the usury was inadmissible on the ground, first urged in this court, that the witness was disqualified by agency, attorneyship,- or pecuniary interest in the suit, on account of his testimony relating to a transaction with the deceased grantee of the security deed; and whether the testimony, even if admissible, was itself sufficient to show usury; — all of which questions were fully dealt with in the original opinion. As there said, the record failed to support the contention of the movants that the examiner sustained their objections (the movants filing no exceptions), so as to relieve them from their failure to file exceptions to the admission of the evidence; and the record shows that the examiner both admitted and considered such testimony. As held in the original opinion with cited authority, among other things necessary to take a case out of the general rule that the uncontradicted and unimpeaehed testimony of a witness can not be arbitrarily rejected, inconsistent “facts and circumstances” must be such as are inconsistent with his testimony, or, as expressed in Armstrong v. Ballew, 118 Ga. 168 (2) (44 S. E. 996), such-as are “apparently in conflict therewith.” This the movants recognize by urging that the circumstances to which they refer did not merely throw light on the relationship, personal feelings, or bias of the witness, but were “inconsistent with the testimony” of the 'witness. Considering then such alleged conflicting cir cunar stances, it is noted that not one relates to the original security-deed transaction, occurring in 1911, or is contrary to the testimony with reference thereto.
(a) It is first urged, that, although the witness Lankford testified that he had no authority from the defendant to take-from the plaintiff a certain option contract executed by the plaintiff, in 1923, by which-the plaintiff agreed to resell the land to the defendant after foreclosure of the security deed and a judgment against *110Lankford', the debtor and grantor, as the only defendant, yet, as the motion states, the defendant, in an amendment prepared by the witness, “while disavowing any knowledge of the option . . contract . . , in the same amendment avers that certain payments of $100 a month were made by her in accordance with an agreement55 with the plaintiff as provided in the option contract. However;, we do not find support in the record for this contention. It appears that the plaintiff in the original petition pleaded this option; but that the defendant then pleaded: “Said alleged option or sales agreement was never signed by her nor delivered to her, nor accepted by or approved by her, and she knew nothing about it until she saw a copy thereof attached to these proceedings; that she knew her husband was endeavoring to settle his obligation to [the plaintiff], but had no idea that an instrument such as the one involved here had been signed by [the plaintiff] or tendered to her in any way.55 The option bore no signature except that of the plaintiff. In view of the quoted latter part of this pleading, there is no conflict between the allegations and the further statement in the amendment that the defendant “at the instance and request of [the witness] consented that he use part of the rents arising from her said property and other money of his and her own to pay $100 per month to [plaintiff] in connection with and on a proposed settlement of the said obligation.55 There is no reference to payment under any option, such as might have contradicted the previous denials or testimony of the witness relative thereto. There was no proof that at the time of the option transaction or at any other time the witness was general agent of the defendant, or special agent authorized to act for her with reference thereto. With regard to the option, this court saw no reason to deal with it in the original opinion, for the reason that the movants, although pleading it in their petition, had themselves expressly abandoned it. After the defendant filed her amendment denying any knowledge or effect of the option, the plaintiff filed an amendment, as follows: “In view of said allegations which admit in effect the non-existence or force of such an agreement, . . the reference to said ‘option or sales agreement becomes moot; and plaintiff prays that the same be declared of no force and effect. Thereupon the examiner entered an order reciting that it was “consented to in open court by counsel for both applicant and the de*111fendant,” and ordering that the “said alleged ‘option or sales agreement’ be and the same is hereby declared of no force and effect.” Therefore the present contentions of the movants,• as to the effect of the option and the alleged failure of this court to consider it, seem inconsistent with their former position and the order taken thereunder.
(í>) Much of the motion for rehearing is devoted'to argument on alleged facts and general legal principles relating to agency. However, there was no testimony as to any pecuniary interest of the witness at the time of the trial, or as to any general agency of the witness for any defendant, or as to any sort of agency or attorneyship of the witness at the time of the original security-deed transaction with the grantee who afterward died, so as to affect the qualification of the witness. The contention that at various subsequent times the witness collected rents and attended to other matters for the defendants, while showing special agency at’ such times, showed no general agency. In any event, these alleged facts and circumstances as to special agency failed to contradict the testimony of the witness as to usury or his other testimony, since the testimony relied on, as quoted in the motion, was derived from the evidence of the witness himself, and shows nothing inconsistent therewith.
(c) Finally, as ground for the rejection of the testimony of usury, movants say that the witness “testified to facts which, as the court points out in paragraph 10 of the opinion, would amount to usury if true, and the failure to pay the amount claimed to have been agreed to have been paid as usury would not relieve the transaction of the taint, [and] the admission that he did not pay the amount that he agreed to pay on this particular item shows further that this was his practice throughout all of these transactions;” and that he allowed the judgment to be taken against him in 1923 in the foreclosure suit without making the defense of usury. As to these matters, the record throws strong light both on the acts of the witness and on the question as to whether a finding of usury was demanded, not only by the testimony of the witness, but by facts in connection therewith. After the witness had testified, as quoted in the original opinion, that he agreed with the lender as grantee in the security deed to pay him $1000 in addition to 8 per cent, interest bn the $15,000 actually advanced, without refer*112ring to any actual payment of such usury, the plaintiff asked this question on cross-examination, and the witness replied: “Q. II is true, in connection with the statement you have just made regarding ihe premium applied to Ihe loan by \_lhe lender], that this entire obligation was settled at the time ihe effort was made to settle it for about 60 per cent, wasn’t it? A. Yes. I didn’t pay the full amount of $1000. Laber on there ivas an amount, less possibly $500, accepted in settlement of it. At that time it was settled, with a great many other obligations.” Even if this question propounded by the plaintiff to the witness, which in effect challenged him to deny the fact that the usury charge of $1000 had been settled for about 50 per cent., and which the witness not only did not deny but admitted, may not have amounted to a technical solemn admission in judicio by the plaintiff, it was of similar nature and effect, in that it amounted to the plaintiff’s affirmation in open court of an existing fact within the plaintiff’s own knowledge, with which the witness agreed', to wit, that usury had been charged and that it had been settled for by the payment of a less amount. The fact that less than the full agreed amount was paid did not free the transaction of usury any more than if none of the agreed amount had been paid. This settlement of the usury would seem to bear materially on the question as to why no defense was filed by the witness in the foreclosure suit, to which the defendants were not parties, and by which, as held in the original opinion, they were not bound. As to the witness himself, not only was he permitted, as he testified in accord with the plaintiff, to “settle” for the usury, so as might have obviated such a defense, but, usury being a personal plea at the option of the borrower, a failure to file such a plea would not seem to have material bearing on the subsequent credibility of the witness as to the fact of usury. Accordingly, not only did the alleged circumstances fail to contradict the testimony of the witness, which was not otherwise contradicted or impeached, but the plaintiff herself in effect accepted or vouched for the verity of its essential part by her statement in open court, as to which she and the witness were in accord.
In view of the earnest and able contentions of the movants that there were inconsistent and conflicting circumstances which authorized the examiner to reject the testimony of the witness as to usury, and which caused the examiner to discredit such testimony, *113we have dealt at length with the merits of such contentions. However, neither in the examiner’s findings nor in the transcript of proceedings do we find support for the insistence of the movants that the examiner disbelieved the testimony and therefore rejected it. On the other hand, it appears that he found that the instruments on which the defendants relied, being executed after the security deed, “by their terms, and because of actual and constructive notice, . . were all made and are subject tó the title previously alienated” by the witness as grantor to the grantee in the security deed '“and the title of those acquiring by virtue of same;” that “the evidence” as to part of the land, “being other than as set forth in the written conveyances, . . is found to be insufficient to so change such conveyances. Likewise, there appears insufficient evidence to void the security deed” from the grantor to the grantee therein. In the immediately following conclusions of law, the examiner found that “by virtue of the deeds described in my findings of fact,” the plaintiff'“acquired fee-simple title;” that “the claims of the objectors referred to' in my findings of fact are of no force and effect because of this paramount outstanding title;” and that “possession and prescription has not operated in favor of or against any party to this suit to the extent of affecting the full force and effect of the various written conveyances.” It thus appears, that, in dealing with questions as to the legal effect of the written conveyances under which the respective parties claimed', prescription, and actual or constructive notice to the defendants, the examiner ruled merely as to the legal sufficiency of the oral testimony to “change such conveyances,” and “likewise” as to the legal sufficiency of such testimony “to void the security deed.” It appears, that, while he admitted and considered the testimony, he thus otherwise sustained the plaintiff’s contentions, made when the testimony was admitted, that “the testimony regarding payments to [the creditor is] indefinite, and [does] not state the amounts made, when they were made, or where they were made, or by whom paid, and that they are all adjudicated with the execution . . under which the applicant in this case claims title,” and, as to the usury, “is too vague and indefinite as to what amounts, if any, were paid, such as would be of any probative value to sustain the allegation of usury, even if [the defendants] were either necessary or proper parties to the suit on the note and security deed on which' *114the execution is based.” Accordingly, the finding oí the examiner that “there appears insufficient evidence to void the security deed,” taken in connection with the only contentions made at the time the testimony was admitted, and with the other findings and conclusions of the examiner, can not reasonably be construed as a finding that the examiner rejected the testimony because he did not believe it, for the reason that, as the movants now contend, he was authorized to do so by the stated facts and circumstances alleged to be in conflict with such testimony.
Nor could this court affirm the judgment approving the specific findings of the examiner on the theory that, even though the examiner did actually consider the testimony of the witness and merely held it legally insufficient to show usury, the examiner could have disbelieved and rejected the testimony and could have so found. While recognition is taken of the long-settled rules both that a judgment approving the verdict of a jury or findings of any other trier of the facts must on the general grounds be affirmed if there be any evidence to support the verdict or finding, and that if a decision is legally correct, the mere fact that the judge based it on a wrong ground or reason will not ordinarily work a reversal, we know of no extension of these principles that would require an affirmance of the present judgment on the theory that the evidence would have authorized the examiner to make a different finding, which, if it had been made, would have authorized other findings which he actually mad'e. So to hold would require a new finding by this court, and in effect make it an original trier of the facts, and not a court of review on the rulings actually made. As the general rule is stated in 3 Am. Jur. 462: “An appellate court will not make findings, even though the evidence clearly warrants them; nor will it add to a special finding a fact, unless that which is added results as a necessary conclusion from the facts found.” See, in addition to numerous cases there cited: White v. Beal &c. Grocer Co. (Ark.), 45 S. W. 1060 (9), 1062; Smith v. Los Angeles &c. Asso., 78 Cal. 289 (20 Pac. 677, 678, 12 Am. St. R. 53). “Relatively to the revising powers of this court, the jury [or other triers of the facts] are the exclusive judges of the credibility of witnesses.” Rome R. Co. v. Barnett, 94 Ga. 446 (5) (20 S. E. 355); Plummer v. State, 1 Ga. App. 507 (57 S. E. 969); King v. Jackson, 9 Ga. App. 413 (71 S. E. 491); Booker v. State, *11550 Ga. App. 66, 68 (176 S. E. 917). While the particular question as to the right of the appellate court to make a new and different finding has not arisen in this State, there are analogies. Thus, although a trial judge is vested A?ith discretion in the grant of an injunction where there is conflicting evid'ence, his judgment will be reversed if he did not actually pass upon such evidence, but based his judgment on an erroneous legal ground. Colclough v. Bank of Penfield, 150 Ga. 316 (2-b) (103 S. E. 489), and cit.; Head v. Bridges, 72 Ga. 30 (2). Also, in the refusal of a new trial, even though there may have been conflicting evidence which, would have authorized the trial judge to refuse a new trial if he had considered and acted thereon, his judgment will be reversed unless he in fact considered and passed upon such evidence. McIntyre v. McIntyre, 120 Ga. 67 (47 S. E. 501, 102 Am. St. R. 71, 1 Ann. Cas. 606); Thompson v. Warren, 118 Ga. 644 (45 S. E. 912). Accordingly, irrespective of the merits of movants’ present contention as to the existence of conflicting circumstances which might have affected the credibility of the witness, it would seem, in view of the actual findings of the examiner and the record relating thereto, that this would afford no basis for an affirmance by this court.
2. An additional ground of the motion is that the court overlooked the fact that in 1915 the grantor in the original security deed of 1911 executed a deed to the father of the defendant in consideration of payment by that grantee of certain debts of the grantor; that in 1920 that grantee executed to the defendant wife the bond for title referred to in the original opinion, and obligating her to pay debts of her husband; that this bond was not good color of title, because the contract of the wife to pay debts of her husband was “inhibited by law;” that it did not have the “sanction of a superior court;” that her possession under the bond was merely permissive, and before a prescriptive title could have ripened under it the obligor father in 1925 executed a deed to the husband, who did not execute a quitclaim deed to the wife until 1937 during the pendency of the suit; that this deed could not be tacked on to the bond for title, although it recited that it was made to correct a mistake by all of the parties in not executing deed to the wife in conformity to the 1920 bond for title, and the testimony as to such an actual mistake was undisputed; and that “even *116though title could not have been registered in the [petitioner], it could not be registered in the defendants on a prescription theory, and there is no other theory in the case.” All of these questions were fully considered and most of them dealt with in the original opinion. The bond for title, made in 1920, shows that the daughter agreed to pay to her father “a sum of money equal to the principal, interest, and costs of all the executions, judgments, liens, items, and amounts which were due by [the daughter’s husband to the father], and which were the consideration moving” the husband to deed the property to the father in 1915. Such a transaction, not being a “sale” by the wife to the husband, did not require approval by the superior court, under the Code, § 53-504. Even assuming that the quoted recitals in the bond for title might indicate an assumption by the wife of debts of her husband, or a contract of suretyship with the father, in contravention of the Code, § 53-503, still this would not have rendered the instrument void, so as to have precluded the wife, as against the vendor in the bond', from choosing to be bound thereby and relying thereon, as she did. Jones v. Harrell, 110 Ga. 373, 375 (35 S. E. 690); Scaife v. Scaife, 134 Ga. 1, 4 (67 S. E. 408); Colquitt v. Dye, 29 Ga. App. 247 (3) (114 S. E. 643). Nor was the making of the quitclaim deed to the wife in 1937, pending the suit, pertinent either to bolster or to weaken her title by prescription, claimed and proved under the bond for title made to her by her father in 1920 and under the d'eed made to her father in 1915. Had the defendant based her claim on the 1937 deed, the rule applied in division 9 of the opinion against the right of the plaintiff to claim registration under deeds from a city and city marshal, executed' after the- filing of the suit, would have been equally applicable against the defendant. But under the claim as actually made, based on prescription under previous instruments, the deed pending the suit was irrelevant on the-question of registration of title, and relevant only to show that the grantor in that deed had no title conflicting with that of the defendants and had no pecuniary interest in the property.
Since the remaining contentions of the motion, as to the right of the defendants to raise the question of usury and as to questions of prescription, have already been exhaustively considered in the original opinion, it is unnecessary to deal further therewith.
Rehearing denied.