107 Ga. 524 | Ga. | 1899
In 1885 one Bacon bargained a tract of land in Taliaferro county to Stone for $3,000, the latter paying $1,500 in cash and taking a bond from Bacon conditioned to make title upon payment of the balance of the purchase-money. In 1889, with money borrowed from the Georgia Loan & Trust Company, for the use of which Stone contracted to pay interest amounting to more than 8 per cent, per annum, he discharged his debt to Bacon, took title to himself, and then conveyed the land to the company as security for his debt to it. The company took this conveyance without notice or knowledge that Mrs. Stone claimed any interest, legal or equitable, in the land. Afterwards, in 1895, Stone conveyed the land absolutely to the company, whose bond for title he had previously held, in full settlement of its claim against him. On the 6th day of October, 1897, an execution in favor of Mrs.
The Pope case has been several times cited by this court, and though it has in two instances declined to give its full sanction to the application which the court therein made of the rule as to privity between creditor and debtor, it has never, so far as we have been able to ascertain, distinctly said that the doctrine embraced in the words above quoted was unsound. On the contrary, this court has many times treated it as correct. Thus, in Phillips v. Walker, 48 6a. 55, it was held that a creditor could not attack as usurious a common-law judgment in favor of another creditor against their common debtor; and Judge Trippe, after remarking that the court was not disposed to carry the doctrine of the Pope case to the extent asked for in ■the case then under consideration, said: “We by no means impeach that decision-.” Page 58. The decision in Gatewood v. City Bank of Macon, 49 Ga. 45, is to the same effect. In that case Judge McCay said (page 48): “In 2 Hill (S. C.) 'Chancery Reports, 474, the chancellor says that a case is not to be found in the books of an interference by chancery with a judgment at law, obtained in the usual mode, under pleadings and notice, on the ground of usury in the original contract. That contract has been merged into the judgment, which imports absolute verity; and it is conclusively presumed that the parties made all the defenses allowed by law, and that the judgment is the conclusion of law on the true facts of the transaction.” But, in speaking of the relation of the complainant to his debtor, who was the defendant in thejudgment which the former sought to attack for usury, the eminent judge also said (page 49): “He is clearly a privy of the defendant ; his only interest in the matter is, that the defendant is his debtor. He comes into the controversy through the defendant, and it would entirely upset the whole doctrine of the
We can not reconcile the decision in Singleton, Hunt & Co. v. Patillo, 78 Ga. 269, with that in Pope’s case, nor accept as accurate a statement made by Justice Blandford in endeavoring to distinguish these cases. Referring to the case in 36 Ga., he said,, “in that case, it will be observed that usury had not been paid.” On the contrary, as stated above, the usury had been paid, and it was held that Pope was entitled to have an account, taken of it and to have the amount, when ascertained, credited upon the principal and lawful interest of Solomon’s claim. It was exactly this sort of relief for which Singleton, Hunt &. Co. prayed in their case. The conflict in these cases is not,, however, material to the present discussion, and our purpose-in mentioning the case in 78 Ga. was simply to show that though the Pope case was there cited, nothing conflicting with the ruling in 36 Ga. upon the question of “privity” between creditor and debtor was decided. In Brooks v. Todd, 79 Ga. 692, it appeared that certain land had been sold by a receiver
In Zellner v. Mobley, 84 Ga. 746, it was said that third persons who had no interest in the transaction under investigation had no right to invoke against the usurer the statute making void titles infected with usury, and that the plea of usury was a personal one which no one could make but the borrower and his privies. There are, in Scott v. Williams, 100 Ga. 540, expressions to the same effect; and doubtless other cases decided by this court lay down the rule -that a mere stranger has no right to attack an instrument purporting to convey title, as being void for usury. The question now before us therefore resolves itself into this: Is a creditor of a party who makes a conveyance tainted with usury a privy or a stranger? We have shown that this court has frequently classed creditors as privies of their debtors; and while we do not venture to assert positively that there is nothing to the contrary in any of its opinions, we have not found nor has our attention been called to any case in which it was decided that a creditor, relatively to the question of his attacking on the ground of usury a conveyance executed by his debtor, was not a privy. Even a decision so holding, if made after that in 36 Ga., would not prevail over it. How, then, stands the question of overruling the decision in 66 Ga. ? It has stood unchallenged for nearly twenty years, and the principle on which it rests, viz., that of privity between creditor and debtor, has been recognized by this court for nearly thirty-two years. In view of these facts, we should in any event be well convinced both of its erroneousness and hurtfulness as a part of our system of usury laws, before undertaking, at this late date, to strike it down. We are not so convinced ; and even if we were, it may now be most seriously doubted that we have the power to overrule the decision in 66 Ga. The principle upon which it is based, laid down by this court for the first time in 36 Ga., is now embodied in the following language in section 2878 of our Civil Code: “The
Judgment reversed.