145 Ga. 336 | Ga. | 1916
A railroad company issued certain bonds, to secure which it executed to a bank, as trustee for the holders of the bonds, a deed of trust covering the railroad as then constructed and to be constructed over a designated route, “together with all the franchises and property, real, personal, and mixed, then owned or thereafter to be acquired by the railroad company, appurtenant to the said line of railroad.” A person who was the president of the bank and also a stockholder and director of the railroad company became the owner of all the bonds mentioned in the deed of trust. The railroad company became financially embarrassed, and owed approximately forty-two hundred dollars taxes for the year 1912, and had insufficient cash with which to pay the amount. The comptroller-general of the State was pressing the company for payment of its taxes, and was about to issue execution and enforce collection thereof out of the property of the company. The bank agreed to loan the railroad company thirty-five hundred dollars, the amount necessary, w'hen added to the company’s cash on hand, to pay the taxes, upon notes of the railroad company, indorsed by four of its stockholders and officers, for five hundred dollars each, one payable the 15th day of May, 1913, and the others at successive periods of
1. It was not essential that the indorser should have paid the notes, in order to have a right to proceed to have the debt paid out of funds of the maker. Cooper v. National Fertilizer Co., 132 Ga. 529 (64 S. E. 650), and citations.
2. The indorser, being himself a stockholder and director in the railroad company, had an interest to protect in the property of the company; and the money obtained upon his indorsement, to pay the taxes, having been applied to that purpose and prevented a levy and sale of the property, the payment, in so far as it related to the indorser, was not such voluntary payment as would deprive him of equitable subrogation. Redington v. Cornwell, 90 Cal. 49 (27 Pac. 40); Sheldon on Subrogation, § 245.
3. The State’s lien for taxes was "superior to the right of the bondholder under the trust deed and his judgment thereon. Under the circumstances there was no error, as against the bondholder, in directing the receiver to discharge the notes from the earnings of the road, and, if insufficient, to encroach upon the proceeds of the sale of the property for that purpose. Wilkins v. Gibson, 113 Ga. 31 (38 S. E. 374, 84 Am. St. R. 204); Redington v. Cornwell, supra; Humphries v. Allen, 100 Ill. 511.
Judgment affirmed.