159 Ga. 683 | Ga. | 1925
Lead Opinion
The case has been before the court on two previous occasions. Brooke v. Jones & Oglesby, 143 Ga. 684 (85 S. E. 879); Erwin v. Brooke, 149 Ga. 434 (100 S. E. 439). A statement of the case, as it then appeared, will be found in the report of the ease when it was first here. Another branch of the litigation was before the court in Brooke v. Lowry National Bank, 141 Ga. 493 (81 S. E. 223). The exception now is to the judgment of the court in overruling demurrers filed by Erwin, receiver, to amendments filed by defendants, T. J. Brooke and J. P. Brooke, to their answers; to rulings made by the court, to whom the case was submitted without the intervention of a jury, upon the admissibility of certain evidence offered by Erwin, receiver; and upon certain findings of law and fact as made by the court.
As we view the case, the chief issue is on the question whether T. C. Erwin, receiver for Jones & Oglesby, was entitled to be subrogated pro tanto to the rights of the Lowry National Bank, holder of a judgment and special lien on the property of G. W. Brooke, including the notes of J. W. Bell. The court ruled against such subrogation. The assignment of error in this regard is as follows: “That said order in paragraph first of the judgment was. vitally erroneous in decreeing that plaintiff, T. C. Erwin as receiver herein, has no right to be subrogated herein to the lien of the Lowry National Bank to the extent that said lien was discharged by payments made by Jones & Oglesby; and said judgment should have held distinctly and emphatically that said Jones & Oglesby made said payments in conformity to an order of court herein, and that their payments extinguished the prior lien to the extent of such payments on the entire one hundred acres involved in this suit,'and that said T. C. Erwin as receiver herein has the right to
Jones & Oglesby were not entitled to the right of subrogation, for the additional reason that legal subrogation is generally by courts of equity applied for the benefit of creditors, as applied in the Wilkins case, cited above; but Jones & Oglesby were not creditors of Brooke, who was the debtor of the Lowry National Bank, plaintiffs in fi. fa. They can claim no benefit on the principle of subrogation as creditors holding a lien inferior to the lien partially, discharged. They were purchasers of land under a contract with Bell, the latter holding only a bond for title. Jones & Oglesby paid their notes because they were obligated to do so as makers. Their payments were not made primarily to discharge a superior lien in order to protect their own interest. Summing the matter tip, Jones & Oglesby, in order to claim subrogation, must have themselves, or in conjunction with others, paid the debt in full due by Brooke to the Lowry National Bank. This was not done. A portion of the debt still exists, and the rights of the bank have been assigned and transferred to Tully J. Brooke. This is true even if Jones & Oglesby could be considered on the basis of creditors, •which they are not. The principle ruled in the Wilkins case was that “subrogation will arise only in those cases where the party claiming advanced the money to pay a debt which in the event of •default by the debtor he would be bound to pay, or where he had some interest to protect, or where he advanced the money under ■ an-agreement express or implied, made either with the debtor or
Judgment affirmed.
Rehearing
ON REHEARING.
The motion for a rehearing points out that in the opinion a quotation from the case of Wilkins v. Gibson, 113 Ga. 31 (supra), was incorrect. The inaccuracy arose from an inadvertent quotation of a portion of a sentence only, which gave directly the opposite rule from that stated in the sentence as a whole. The mistake is regrettable. In the opinion the sentence as a whole has been substituted for the portion as it originally appeared. Other grounds of the motion for a rehearing constitute merely a reargument of the case, particularly stressing some of the assignments of error. After a second consideration of the record we are unable to find any error. Accordingly the- judgment is adhered to.