Washington Exchange Bank v. Smith

149 Ga. 650 | Ga. | 1920

Beck, P. J.

(After stating the foregoing facts.)

1. In the course of the opinion affirming the judgment of the court below the Court of Appeals made this ruling: “2. Under the agreed statement of facts, the court, passing by consent upon all questions both of law and fact, did not err in finding and adjudging that the $5,000 note was the only note sued on which was secured by deed, and that the $447 note was not so secured. The deed in question, which secured the $5,000 note, was executed prior to the execution of the $447 note. The $447 note was, however, executed prior to the execution of the $5,000 note, and was held by the plaintiff bank at the time of the making of the latter note. The $5,000 note did not specifically refer to the $447 note (both notes being executed by the same person), but contained the following provision: ‘And it is hereby agreed and understood that any excess of security upon this note shall be applicable to any other note or claim held by said bank against me.’ No parol evidence was introduced to show that the $447 note was secured by the deed given to secure the $5,000 note, or that this was the intention of the parties, and the language just quoted from the $5,000 note was insufficient in itself to establish such fact.”

In the case of Leffler Co. v. Lane, 146 Ga. 741 (92 S. E. 214), it was said: “W., in his individual capacity, executed and delivered a deed to land to secure a named indebtedness due by him to L. The deed stipulated that it was given to secure ‘any and all indebtedness’ which W. ‘may hereafter owe’ to L. After the delivery of the deed W. became a member of a partnership, which also became indebted to L. Upon the dissolution of the partnership with the knowledge of L., its entire indebtedness due L. was assumed by W. Held, that under the terms of the security deed, when W. assumed the debt of the copartnership, it became his debt, and was covered by the deed described.” The stipulation in the $5,000 note, that “It is hereby agreed and understood that any excess of security upon this note shall be applicable to any other note or claim held by said bank against me,” was broad enough to cover the $447 note which was executed subsequently to the execution of the original $5,000 note, but prior to the renewal note containing the stipulation quoted; and the expression, “Any excess of security upon this note shall be applicable to any other note or claim held by the bank .against me,” should be construed to mean that if there were other notes held by the bank against the maker they should be secured by the deed to the extent of the excess of the value of the land conveyed by the deed over and above the amount that might be due on the $5,000 note. The ruling made in the case of Leffler Co. v. Lane, supra, and what we have ruled here, is supported by the rulings and discussion of questions very similar to that presented here, in the cases of Wylly v. Screven, 98 Ga. 213 (25 S. E. 435), Mizell v. Kesler, 135 Ga. 583 (69 S. E. 1080), and Bank of Chatsworth v. Patterson, 148 Ga. 367 (96 S. E. 996).

2. In view of the ruling made above, this court will not pass upon the question as to whether or not the tender alleged and proved by the defendant was a valid and sufficient tender; inasmuch as that question will be considered from a materially different standpoint when the ease is tried again.

Judgment reversed.

All the Justices concur.