tion, see the monographic note to Graham v. Burch, 28 Am. St. Rep. 347, 348. Lost Will-Proof of.-Though the substance of a destroyed or lost will may be admitted to probate, it must be shown by the clearest and most satisfactory evidence that the instrument was properly executed and was not revoked by the testator, and what were its contents. In some jurisdictions the execution and contents may be proved by a single witness; in others, the statute requires more than one: Note to Tynan v. Paschal, 84 Am. Dec. 628-630; Dickey v. Malechi, 6 Mo. 177, 34 Am. Dec. 130; Matter of Page, 118 Ill. 576, 59 Am. Rep. 395, 8 N. E. 852; Kitchens v. Kitchens, 39 Ga. 168, 99 Am. Dec. 453. Consult, also, Jones v. Casler, 139 Ind. 382, 47 Am. St. Rep. 274, 38 N. E. 812; In re Ellis' Estate, 55 Minn. 401, 43 Am. St. Rep. 514, 56 N. W. 1056. WOODSIDE v. LIPPOLD. [113 Ga. 877, 39 S. E. 400.] MORTGAGES CANCELING SATISFACTION-MERGER.— Where a mortgagee takes a conveyance of the mortgaged premises, the mortgages not being canceled, and subsequently conveys to one who takes no assignment of the mortgages, and who requests that the mortgages be satisfied and canceled of record, in order to clear the record of liens against the property, an unequivocal intention is expressed that the mortgages should no longer exist, but should merge in the title, and equity will not restore the liens of the mortgages in order to give them priority over an intervening mortgage. MISTAKE OF FACT-RELIEF.-EQUITY will grant relief against a mistake of fact only when it is of such a nature that it could not, by reasonable diligence, have been avoided at the time, but relief will not be given against the results of inexcusable negllgence. One Mrs. Venable executed two mortgages to the American Trust and Banking Company. Subsequently a mortgage on the same property was executed to the defendant. Later the mortgagor conveyed in fee simple to the trust company, the mortgages not being canceled, which conveyed to the plaintiff Woodside, at whose request the two mortgages were canceled of record, the plaintiff taking no assignment of the mortgages. Subsequently the defendant brought suit to foreclose, and the plaintiff filed the present petition to enjoin the foreclosure, to cancel the defendant's mortgage, and to restore the trust company's mortgages to their priority. Verdict for the defendant. Ellis & Ellis, Gray, Brown & Randolph, and C. W. Smith, for the plaintiffs. Charles A. Read, for the defendants. 879 FISH, J. This case turns upon the question whether, under the facts stated, equity will restore the liens of the mortgages canceled by the American Trust and Banking Company to their original priority over the mortgage held by Lippold. Under the view we take of the matter, it is unnecessary to determine whether, according to the equitable doctrine relating to merger, the liens of the mortgages held by the banking company were merged in the title when Mrs. Venable conveyed the premises to the company, or were extinguished by the settlement of the mortgage debt in that transaction; for, in our opinion, there can be no doubt that the liens of such mortgages were absolutely extinguished when at the request of Woodside, who had purchased the mortgaged property from the banking company and taken a warranty deed thereto, the banking company made the entries of full satisfaction upon such mortgages and had them canceled of record, this being done in order to clear the record of liens against the property. If up to the date of Woodside's purchase there had been no merger, and the banking company's mortgages were then alive, and if the banking company and Woodside intended when he purchased that he should take all the interests and rights which the banking company held in and to the property, and if under such circumstances no merger or extinguishment of the banking company's mortgages occurred, in equity, when Woodside acquired the title, yet when the banking company subsequently, and at his instance and request, deliberately marked the mortgages satisfied and had them canceled of record, they never having been assigned to Woodside, there was then manifested an express and unequivocal intention on the part of both Woodside and the banking company that the liens of its mortgages should no longer exist that they should merge in the title which Woodside had acquired-and such intention became effective and the mortgages were extinguished. It has been uniformly held, in the application of the equitable doctrine concerning merger, that the intention, when expressed, of the person in whom the two estates or interests meet must control: 2 Pomeroy's Equity Jurisprudence, 2d ed., sec. 791; 15 Am. & Eng. Ency. of Law, 1st ed., 325; Ferris v. Van Ingen, 110 Ga. 111, 35 S. E. 347. In Weidner v. Thompson, 69 Iowa, 36, 28 N. W. 422, the mortgagor conveyed the mortgaged property to the mortgagee, who conveyed 880 it to a third person, who gave his note in substitution of the note of the mortgagor, and the holder of the mortgagor's note delivered it to such third person, marked "paid," and canceled the mortgage of record. A judgment was rendered against the mortgagor after his execution of the mortgage, but prior to his conveyance to the mortgagee. In an action by the purchaser from the mortgagee to have the cancellation of the mortgage set aside, on the ground that it was not the purpose of the parties to cancel it, and that it was against their interests to do so, it was held that the cancellation could not be set aside. In the opinion Beck, J., said: "It cannot be doubted that the law will look to the intention of the parties, and the interest of the plaintiff, in order to determine whether the mortgage is to be regarded as paid and canceled. The fact that it was canceled of record will not avail to discharge the mortgage, if the parties intended that the lien should continue, and the plaintiff's interests demanded it. But if the parties intended to discharge the mortgage, and the debt was in fact paid, and not transferred to the plaintiff, the cancellation must stand, and the lien be regarded as discharged. The mere fact that plaintiff's interests would have been better protected by permitting the lien to stand will not control against the intention, clearly established. The law will permit a party in such a case, as in others, to act and contract in a manner which would not result to his interest": See Campbell v. Carter, 14 Ill. 286. The satisfaction and cancellation of the banking company's mortgages seem to have been made under a mistake of fact, that Lippold had abandoned his mortgage and would make no effort to foreclose it. While equity will grant relief against a mistake of fact, it is well established that such a mistake must be of such a nature that it could not, by reasonable diligence, have been avoided at the time. Equity will not relieve against the results of culpable and inexcusable negligence. By the exercise of the slightest diligence on the part of Woodside and the banking company, they could have readily ascertained the intention of Lippold in reference to the enforcement of his mortgage. It does not appear that he or his attorney ever intimated that the mortgage had been abandoned. The attorney for the banking company gave as a reason for the satisfaction and cancellation of the company's mortgages that the attorney for Woodside reported that he had had an interview with the attorney 881 for Lippold, and that Lippold would not enforce his mortgage. Equity will not grant relief under such circumstances. The verdict being demanded by the undisputed facts, there was no error in refusing to grant a new trial. Judgment affirmed. All the justices concurring. Merger of Estates.-Whether a merger results from the possession by the same person at the same time of two estates of different rank in the same property is generally a question of the owner's intention. He may elect to keep them separate: Longfellow v. Barnard, 58 Neb. 612, 76 Am. St. Rep. 117, 79 N. W. 255. This principle is applied to the estates of mortgagor and mortgagee in Title Guarantee Co. v. Wrenn, 35 Or. 62, 76 Am. St. Rep. 454, 56 Pac. 271. Consult, also, Howard v. Clark, 71 Vt. 424, 76 Am. St. Rep. 782, 45 Atl. 1042. GUERNSEY v. PHINIZY. [113 Ga. 898, 39 S. E. 402.] FIXTURES.-BRICK, LUMBER, AND OTHER PERSONALTY, used for the construction of a substantial and permanent building upon the land, become a part of the realty. FIXTURES RECONVERSION INTO PERSONALTY.BRICK AND LUMBER used in the construction of a house become a part of the land, and so remain until severed and reconverted into personalty by the owner. Hence, if a house is accidentally destroyed and falls to the ground, the brick and lumber remain a part of the land as long as the owner leaves them as they have fallen, and until he does some act evidencing his intention to reconvert them into personalty. INTEREST ON JUDGMENTS-VERDICT.-Under the statutes of Georgia, judgments bear interest only from the time they are entered and signed, and not from the date of the verdict, and the same rule applies to a decree in equity for a specific sum of money. COSTS-DISCRETION OF JUDGE.-IN EQUITY the question as to which party shall pay the costs rests in the discretion of the judge, and this discretion will not be interfered with where it has not been abused. Joseph B. & Bryan Cumming, for the plaintiffs in error. 898 SIMMONS, C. J. It appears from the record that Mrs. Guernsey and Hervey S. Hoadley owned a lot of land in the city of Augusta. On the lot was a brick building. They offered the property for sale through an agent, and by him it was sold to Phinizy at the 899 price of sixteen thousand dollars. Prior to this the vendors had given a security deed to Stetson, the latter giving them a bond for titles to reconvey upon the payment of the money loaned. By the contract of sale this security deed was to be paid off and the property reconveyed before Phinizy was to pay for it in full. Considerable delay occurred by reason of the loss of the bond for titles made by Stetson, the latter refusing to reconvey until the bond was produced or a bond of indemnity given him. Pending the negotiations the house was accidentally destroyed by fire. After the fire it appears that the vendors undertook to rescind the contract of sale. Phinizy refused to rescind, and tendered for the lot a certain amount of money, less than the original contract price. This was refused, the vendors demanding the full contract price. Thereupon the vendee filed an equitable petition, setting out these facts, and praying a specific performance of the contract, and that a deduction be made because of the destruction by fire of the improvements upon the lot. Upon the trial the jury found that, at the time the contract was entered into, the land itself, without the improvements, was worth eight thousand dollars, and that since the fire the vendee had tendered that amount for the land. The court decreed that the plaintiff should pay to the vendors the sum of eight thousand dollars, and that they should make him a deed to the land and remove there from certain encumbrances, including that of Stetson. This verdict and decree were not excepted to by either party, but, between the rendition of the verdict and the making of the decree, a dispute arose as to the ownership of the brick left upon the lot after the fire. It appears that some of these brick constituted a part of the remaining foundations of the building, while the remainder were part of the debris which had fallen and which remained on the land after the fire. The defendants amended their answer, after verdict, by setting out these facts and praying that the brick be decreed to belong to them. Phinizy resisted this by a demurrer and by an answer. The court decided that the brick belonged to Phinizy. The court also decreed that the eight thousand dollars bear interest from the date of the decree, and not from the time of the rendition of the verdict, some time having elapsed between the verdict and the decree. It was also decreed that the defendants should pay all costs. The defendants excepted to the decree as to the ownership of the brick, as to the interest, and as to the costs, and by writ of error brought these questions to this court for review. 900 1. Whatever may be the law of fixtures with regard to articles not firmly annexed to the soil, it is clear that when the owner of land uses brick, lumber, and other personalty for the construction of a substantial and permanent building upon his land, they become a part of the realty. Brick, though personal property before they are put in the house, become afterward attached to and a part of the land and so remain until severed and reconverted into personalty by the owner. If a house of |