46 Ga. 580 | Ga. | 1872
The position of counsel for plaintiff in error in this case was that the contract for the purchase of the land was one thing, the indorsement of a note of a third person in settlement, as he contended, quite another. In the first case, the purchaser was the primary debtor; in the second, his liability wras subordinate to that of the maker; that his indorsement, and Collier’s acceptance of it, put him in the position of a mere surety; that the indebtment for the sale of the land was extinguished, and Collier must look to the contract as contained in the note, which was not given for the purchase money of the land, and that, therefore, an execution issuing from a judgment obtained upon the note, could not be levied on the land after it had been set apart as a homestead; that there is a novation here by the introduction of a new party, and the old contract is destroyed. The argument of the learned counsel is certainly ingenious, and displays great subtleness and fertility of resource. The doctrine contended for is undoubtedly correct, under our law, that the indorser is a surety; but not only surety — and herein consists the fal
In any view we take of it we cannot divest the case of the prominent fact that Lane indorsed the note for the land, and that a judgment against him as such indorser is a judgment for the purchase money of the land, and takes precedence of the homestead.
We, therefore, affirm the judgment, provided the plaintiff in fi. fa. will dismiss his levy upon all land included in the homestead of the plaintiff in error, which was not purchased from Francis P. Collier.
Judgment affirmed.