Foy-Adams Co. v. Smith

19 Ga. App. 172 | Ga. Ct. App. | 1917

Jenkins, J.

(After stating the foregoing facts.) 1. It is granted by each of the parties litigant that, the mare being with foal at the time the first note was taken and the reservation of title made, the increase, as a matter of law, followed the dam, and that up to the taking of the second note the lien attached to the colt under the reservation made in the first note in favor of the payee thereof. Therefore, the sole question for this court to determine is whether the surrender of the first note and the taking of the new note, under the facts as stated, amounted to such a novation of the original contract as would divest the title thereto held by plaintiff, in so far as the rights of claimant are concerned. We think that it did. The law is well recognized that a contract may be renewed between the same parties, as to the same subject-matter and upon the same consideration, without working a novation. Civil Code (1910), § 4226.

In the case of Partridge v. Williams, 72 Ga. 807, the Supreme Court said: “We think the m'ere renewal of a note, at the same rate of interest, is not a novation; no new parties are added, and no new consideration passes.” In Bonner v. Woodall, 51 Ga. 177, the court said: “The renewal contract was to pay him the same amount, with the lawful interest due thereon, for the same eon•sideration, and there is no pretense that there was any other consideration.” From Wofford v. Gaines, 53 Ga. 485, we quote as follows: “If it be renewed, it is renewed with one of the parties to it, and the renewal is simply a contract fixing a new day as to the same matter and with no new or different consideration.” In the case of Farkas v. Third National Bank, 133 Ga. 755 (66 S. E. 926, 26 L. R. A. (N. S.) 496), this language is used: “While it is the law that the mere taking of a new note or mortgage, the debt evidenced by the former and the property embraced in the latter being the same, will not discharge or displace the lien of an existing mortgage, it is equally well-settled law that where the new transaction involves the payment and satisfaction of the first mortgage, the mortgagee’s rights are dominated by the intervening liens of third persons, liens acquired subsequently to the execution of the first, and prior to the execution of the second mortgage.”

Counsel for the plaintiff in error, in his thorough and painstaking brief, calls special attention to the rule announced in the case of Carlton Supply Co. v. Battle, 142 Ga. 605 (83 S. E. 225, L. R. A. 1916A, 926), as controlling the case at bar, but we do not think that there is any lack of harmony in the ruling there announced with the principle of law already recognized by our Supreme Court in the cases from which we have quoted. In the case of Carlton Supply Co. v. Battle, supra, there were a number of notes executed and.payable at different times, reserving title to different mules. Different payments had been made on different notes; the amounts of the unpaid notes were consolidated and one new contract was made, in which the title to all of the property described in the various notes was reserved.. We do not think that the facts in that case are at all analogous to those of the case at bar. The renewal note in that case contained the following language: “All the above property being the same property bought and mortgaged to J. J. Battle as indicated by Nos. from 1 to 8, and this note is given to extend the old notes only, and to stand in lieu of said notes.” In the opinion in that case it was said: “The taking of a second mortgage for the same debt, upon the same property, does not of itself extinguish the first.”

The descriptions of the property embraced in the first and second notes respectively would indicate that a substitution was made as to the mule upon which the lien existed; and this, if true, would constitute an additional reason sufficient to operate a discharge of the lien under the original contract; but in the agreed statement of facts we find it stated' that the property set forth in the two notes is the same, with the exception that the colt, born after the making of the first note, was included in the second; and we therefore consider that this point, if the facts be as they appear, is waived.

It is our opinion that the trial judge did not err in finding the property not subject; and the judgment of the court below is

Affirmed.

Broyles, P. J., and Bloodworth, J., concur.