Bank of Trion v. Parker

43 Ga. App. 686 | Ga. Ct. App. | 1931

Stephens, J.

1. Where a surety, in order -to secure himself against loss arising out of the contract of suretyship, takes from the principal a bill of sale to personalty, and afterwards lends to the principal a sum of money to be paid on the debt, thus establishing the relationship of debtor and creditor between them as respects the money thus advanced, and the principal pays the money on the suretyship debt, the surety has thereby suffered no loss on account of the suretyship, and the property which the principal conveyed to the surety is not security for the money thus loaned to the principal. By payment of the surety-ship debt in full the legal title immediately becomes vested in the principal and he has a leviable interest in the property. Citizens Mercantile Company v. Easom, 158 Ga. 604 (123 S. E. 883); Pitts v. Bullard, 3 Ga. 5; Civil Code (1910), § 3306. The surety can not sustain a claim to the property where it is levied on as that of the principal under an execution against the principal in favor of another creditor.

Decided August 27, 1931. Wesley Shropshire, Maddox, Matthews & Otvens, for plaintiff. Henry & Jackson, Sorter & Mebane, for defendant.

2. In this case, the surety having filed claim of title to the property after it had been levied upon under an execution against the principal, and the evidence on the trial of the issue being sufficient to authorize the inference that the money advanced by the surety to the principal and paid on the suretyship debt was a loan from the surety to the principal, that the suretyship debt had been discharged in full by the principal without loss to the surety, and that the title to the property was not in the surety but in the principal, a verdict for the plaintiff in execution was authorized, and the court erred in directing a verdict for the claimant.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.