9 Ga. App. 333 | Ga. Ct. App. | 1911
(After stating the foregoing facts.)
The plaintiffs, then, being the bona fide holders of the notes made to the bank, as transferees, and as such entitled to sue thereon, and being the holders of the mortgage, based upon a valid consideration, it can not be seriously questioned that they were entitled to the benefit of the stipulation contained in the mortgage (and which is shown to be a perfectly valid stipulation), that in case of default as to one note, they had the right at their option to declare all the remaining notes due. But, even without any legal authority in support of this right, the contract itself expressly gave the plaintiffs the right, on default in the payment of one note, to "declare all the others due, and, as this stipulation or covenant does not contravene any public policy or general principle of law, it is valid and binding. It is not denied that such a stipulation would be valid when made to the payee of notes, or by the holder .of a mortgage made to secure notes. The question is whether such a provision is valid when made to protect a surety. Under section 3568 of the Civil Code (1910), any surety who has paid the debt of his principal is entitled to be substituted in the place of his creditor as to all securities held by him for the payment of the debt. If, therefore, the bank had held a mortgage providing that, in case of default of one note, all the notes would become due, the transfer of the notes by the bank would carry with it to the transferee the right which the bank had as to this stipulation; for the transfer of a note secured by a mortgage carries with it the mortgage lien. National
The foregoing 'are the only questions argued by counsel for the plaintiff in error before this court and embraced in his brief, many other questions raised by the record having been abandoned.
The uncontradicted evidence demanded the verdict.
Judgment affirmed.