55 Ga. App. 11 | Ga. Ct. App. | 1936
Lead Opinion
The Federal Land Bank of Columbia brought suit against J. L. Humphrey, A. B. Conger, and W. W. Marchant, on a note executed by Humphrey, and on two assumption agreements executed by Conger and Marchant. The prayers were for personal judgments against the defendants, and for a special judgment against certain lands. As to Humphrey and Marchant the action is in default. Conger filed a general demurrer, which the judge sustained, resulting in a dismissal of the action as to him. Exceptions in this court are to that ruling. The petition set out that on December 23, 1919, Humphrey as principal, and the Bainbridge National Farm Loan Association as surety, borrowed $2500 from the plaintiff. The principal sum with interest was payable in 35 annual instalments, and was evidenced by a note together with a security deed to certain described lands. In November, 1925, Conger made an application to the Federal Land Bank. The parts of that application necessary to a decision of this case were as follows: "Assumption: The undersigned applicant hereby applies for permission to assume the note and mortgage and also the stock interest of J. L. Humphrey, and for membership in the Bainbridge National Farm Loan Association, and agrees to and does assume all of the terms, covenants, and conditions of the said .loan, and obligates himself fully and faithfully to perform the same in accordance with the true intent and purpose thereof and contained in and evidenced by the said note and mortgage or loan deed and the Federal farm-loan act.” Following this is an agreed valuation or purchase-price of the property, and a financial state
On March 6, 1934, the Federal Land Bank wrote to Marchant, concerning loan G. 60-32, substantially as follows: '“Consideration has been given your request for an extension of time for the payment of indebtedness past due in connection with the subject loan as below indicated. 12-1-31, instalment $162.50, — 12-1-32, instalment $162.50, — 12-1-33, instalment $141.54. Subject to the approval of the Bainbridge National Farm Loan Association, and with the agreement of others, if any, liable for the payment of this loan or who own any part of the mortgaged property, and subject to all conditions and terms of the original note and mortgage (or loan deed), the time for payment of the indebtedness listed above will be extended over a period of 5 years on the following basis: [Here is set out the manner of payment of the matured indebtedness.] We are sending a copy of this letter to your association; and unless advised to the contrary, we shall assume that the extension outlined herein bears its approval.” The petition of the plaintiff set forth that at all times before the filing of the suit the Federal Land Bank had no information whatever of
There can be no question, under the assumption agreements set out as exhibits to the petition, that Conger became subject to all the conditions of the loan made to Humphrey by plaintiff. See, in this connection, Federal Land Bank v. Shingler, 174 Ga. 235. However, under the facts alleged in the petition, does it appear that Conger ever became a surety on the loan in question, so that a valid and binding extension of the time of payment of the loan between the creditor (plaintiff) and the principal debtor would discharge his liability ? On the other hand, do not the facts as set forth in the petition show Conger to be a principal debtor of the loan? Conger contends that under the rulings in Stapler v. Anderson, 177 Ga. 434 (170 S. E. 498), Burgess v. Ohio National Life Insurance Co., 48 Ga. App. 260 (172 S. E. 676), Wrenn v. Massell Really Co., 49 Ga. App. 418 (176 S. E. 60), Smith v. Gholstin, 45 Ga. App. 287 (164 S. E. 217), Prudential Insurance Co. v. Bush, 180 Ga. 110 (178 S. E. 150), the judge’was correct in dismissing the petition as to him. In the Stapler case it was said: “'Where the grantee of mortgaged premises assumes and
It will be noted, in all the cases cited, that the party with whom the agreement for extension was made, or who might become liable
Judgment reversed.
Rehearing
ON MOTION FOR REHEARING.
We have stricken from the original opinion prepared by the court all rulings upon the questions that we point out in this opinion are unnecessary to be decided on this writ of error, and have made some changes in form and grammatical expression. With this modification the original judgment of reversal is adhered to, and the motion for rehearing is denied.