163 Ga. 760 | Ga. | 1927
A borrower of money, under the provisions of section 13 of the act commonly called the money lender’s act (Acts 1920, pp. 215-219), executed a note for payment of the principal debt and interest in installments, which also contained a clause purporting to convey described personalty as security for thd loan. The borrower remained in possession of the property, and received from the lender a contemporaneous writing providing for reconveyance of the property on payment of the debt. Subsequently, when the lender was about to institute bail-trover proceedings in the city court of Atlanta, to enforce payment of the debt, the borrower brought suit against the lender, seeking a decree declaring void the contract and. enjoining institution of the bail-trover proceeding. The alleged grounds of equitable relief were, that in making the loan the lender did not comply with certain
(а) The action being between the original parties to the contract, the borrower could set up in defense of the action of trover the several matters alleged as grounds for equitable relief. In these circumstances the trial court did not err. See Kilpatrick v. Coates, 154 Ga. 643 (115 S. E. 103); Hast v. Henry Darling Inc., ante, 760.
(b) Inability of the borrower to give a replevy bond in the bail-trover proceeding will not affect the case. Napier v. Varner, 149 Ga. 586 (2) (101 S. E. 580). Judgment affirmed.