(after stating the facts as above). The assignments attacking the judgment as erroneous because not warranted by the testimony will be sustained.
It appears from the record sent to this court that the judgment is without any evidence whatever to support it, so far as it is in favor of the interveners.
[1, 2] It further appears that the testimony relied on to support the judgment so far as it is in favor of the defendants consists of the part of plaintiff in error’s petition which describes'various tracts of land alleged to have been owned by James O. Walker and his wife, Mollie E. Walker, and proof that said James C. Walker and his said wife were married in 1896, that he died intestate in January, 1918 or 1919, and that she died intestate and childless September 16, 1920, leaving the defendants, who were her only heirs, surviving her. The only relief the defendants were entitled to on their pleadings, in any event, was a decree determining that the claim asserted by plaintiff in error to the land was a cloud on title they' had thereto and removing it. Unless the alleged contract between plaintiff in error and James C. Walker was in writing it was not a cloud on the title to the land. Waters v. Lewis, 106 Ga. 758, 32 S. E. 854; Weyman v. City of Atlanta, 122 Ga. 539, 50 S. E. 492; Simkins, Equity, 814 et. seq.; 5 Pomeroy’s Equity, 4827 et seq.; Henderson v. Davis, 191 S. W. 358; Raycraft v. Johnston, 54 Tex. Civ. App. 466, 93 S. W. 237; 1 Alexander on Wills, 173; 1 Underhill on Wills, 389. The burden was on defendants to show that plaintiff in error’s claim was a cloud which they were entitled to have removed. As they failed to discharge the burden, it is obvious that a judgment in their favor, for that reason if for no other, was not warranted by the testimony.
Other questions presented by assignments are not likely to arise when the cause is tried again, and therefore need not be determined.
The judgment is reversed, and the cause is remanded to the court below for a new trial.
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