177 Ga. 434 | Ga. | 1933
In this State there is a difference between a deed to secure a debt, which conveys legal title to the grantee, and a mortgage, which merely creates a lien upon the mortgaged property; but for the purposes of this ease the difference is immaterial, and for convenience in answering the question propounded by the Court of Appeals “A” will in some instances be referred to as “the mortgagor” and “B” as “the mortgagee” and “C” as “the grantee.”
In 19 R. C. L. 373, § 143, it is stated: “Where the grantee of mortgaged premises assumes and agrees to pay the mortgage, he becomes at least as to the mortgagor the principal debtor, the latter occupying the position of suretjc” See also § 145. In § 156 it is stated as the general rule that “An agreement for an extension of time, entered into between the mortgagee and a grantee who has assumed the mortgage, will, if valid and made on sufficient consideration, so as to be legally enforceable, discharge the original mortgagor or intermediate grantees who may likewise have assumed the mortgage, unless the extension is assented to by the mortgagor or intermediate grantee.” Referring to the minority rule, it is stated in § 158: “The view is taken in some jurisdictions that though, as between themselves, the original mortgagor and his grantee, who assumes the mortgage, may sustain the relation of principal and surety, as to the mortgagee both are principals, severally liable, and therefore that an extension of time to the one will not release the other.” A leading case announcing the general rule is Calvo v.
In this State it is declared in the Civil Code, § 3538 : “The contract of suretyship is that whereby one obligates himself to pay the debt of another, in consideration of credit or indulgence, or other
A different result is not required, as contended by the attorneys for the plaintiff in error, by the following provisions of the act of 1924 (Acts 1924, p. 126), called the uniform negotiable-instrument