111 Ga. 200 | Ga. | 1900
Campbell brought bail-trover against Morgan, in the city court of Atlanta. The case was submitted to the judge, upon substantially the following agreed statement of facts: Hardaway held three notes dated August 16, 1897, signed by Morgan, payable to the order of Hardaway, one for $100 due 60 days after date, one for $100 due 90 days after date, one for $125 due 120 days after date. Hardaway applied to Jackson for a loan, and offered him these notes made by Morgán, but Jackson refused to discount them. Hardaway then asked him if he would discount the notes in case they were indorsed by Campbell, the plaintiff. Jackson agreed to do so. Campbell indorsed the notes, and Jackson let Hardaway have thereon $275. At the same time a bill of sale from Morgan to Jackson, on the personal property herein involved, was delivered to Jackson in order to secure.the notes. Campbell, the plaintiff, did not know at what price the notes were sold, to whom the}' were, sold, and did not know who held the same until about the time the first note became due, when he was informed who held the notes, but not what had been paid for the same. Campbell called upon Morgan and asked him to pay-ea.ch of said notes as they, became due. Morgan told Campbell that he, Morgan, did not have the money to pay off the notes, and asked Campbell to pay the same, and, upon Campbell paying same, Morgan stated that he would pay back to Campbell the money so expended.. In pursuance of this request of Morgan, Campbell paid to Jack-sou the sum of $325, the full face of the notes, without knowledge of what sum had been paid for the notes by Jackson. The three notes were introduced in evidence, indorsed by “J. ACampbell, Set}'.,” and transferred to J. A. Campell by Jackson as follows: “Without recourse, this note is transferred to J. A. Campbell for value received.” The bill of sale was also introduced in evidence. It was made for the purpose of securing the payment of these notes, under §1969et seq. of the Code of 1882, and in accordance with the act of the legislature approved December 17, 1894. It was properly signed by Morgan, legally attested, and was filed for record on December 24, 1897, and recorded on January 3, 1898. On September 16, 1897,
The court rendered a judgment deciding that the defendant-Morgan could not set up the outstanding title of Bush in his defense, and was estopped to plead usury as against Campbell holding the notes; but he ruled that the evidence showed the bill of sale under which plaintiff claimed was void for usury,, and that the plaintiff could not bring this kind of action, that is, trover, as he had no title, and that his action, therefore, failed. The plaintiff in his bill of exceptions assigns error upon the admission of the evidence of Bush and of the bill of sale from Morgan to Bush; and also assigns as error the judgment of the court finding against the plaintiff, for the reason, that the same was contrary to law and the evidence, and be
The decisions relied on by counsel for defendant in error have no application to the facts in this case. For instance, in Beach v. Lattner, 101 Ga. 357 (2), it was decided: “A grantee in a security deed tainted with usury, can not, as against the maker thereof, convey a good title even to a person who takes bona fide, before maturity, for value, and without notice of the fact of usury.” To the same effect.see Angier v. Smith, 101 Ga. 844. But in none of these cases does it appear that an innocent party was induced to purchase the note, or the property covered by the deed tainted with usury, by the representations and at the request of the maker thereof. Nearer allied to the facts in this case is the principle decided in Polhill v. Brown, 84 Ga. 338-9 (3), where it was held: “ Whatever usury may have been in the contract under which defendant had formerly conveyed the land
Judgment on main bill of exceptions reversed; on cross-bill affirmed.