Zellner v. Hall

210 Ga. 504 (1954)

80 S.E.2d 787

ZELLNER, Administratrix, v. HALL.

18496.

Supreme Court of Georgia.

Submitted February 8, 1954.

Decided March 9, 1954.

Rehearing Denied March 23, 1954.

W. B. Mitchell, Williams & Freeman, for plaintiff in error.

George Richard Jacob, Kennedy, Kennedy & Seay, A. M. Zellner, Hugh Sosebee, John A. Smith, contra.

*508 HAWKINS, Justice.

1. The petition having been twice amended following the judgment overruling the general demurrer to the original petition, and the demurrer not having been renewed to the petition as thus amended, the exception taken by the defendant to the order overruling such demurrer presents only a moot question. Mooney v. Mooney, 200 Ga. 395 (37 S. E. 2d 195); Horton v. Walker, 204 Ga. 319 (49 S. E. 2d 900); Holliday v. Pope, 205 Ga. 301, 308 (1) (53 S. E. 2d 350).

2. Where, as in this case, a security deed covered both real and personal property, and in case of default, conferred upon the grantee therein the right to sell "in whole or in part" the property thereby conveyed, a foreclosure and sale by the grantee of the personal property located in one county will not be held to amount to an abandonment by the grantee of his lien upon the real estate located in another county. See, in this connection, Manry v. Farmers Bank of Forsyth, 175 Ga. 904 (166 S. E. 653). The ruling here made is not in conflict with the decision in Ledbetter v. McWilliams, 90 Ga. 43 (4) (15 S. E. 634), relied upon by the plaintiff. In that case it was held that, where a petition for foreclosure embraced separate parcels of land, and the rule absolute was confined to one or more separate parcels, and omitted others, the mortgage abandoned his lien as to the parcels against which no judgment of foreclosure was entered. No such state of facts exists in the instant case.

3. When a grantee in a sales agreement, as a part of the consideration thereof, assumes and agrees to pay an outstanding indebtedness against the property thus conveyed, evidenced by a note and deed to secure debt, he takes upon himself the burden of the debt or claim secured by the deed, and, as between himself and his grantor, he becomes the principal and the latter merely a surety for the payment of the debt. While the holder of the security deed is not bound by such an agreement unless he consents to it, when, with knowledge of such an agreement, *505 he enters into an independent stipulation on his own account with the grantee, as English did in this case, by the entry on the contract between Turner and Gaddis, and signed by him on December 9, 1949, whereby he obtains a new obligation running directly to himself on the footing that the grantee becomes principal, then, in the absence of special conditions, he is held to have recognized and become bound by the relation of principal and surety existing between the maker of the security deed and the grantee. Stapler v. Anderson, 177 Ga. 434, 436 (170 S. E. 498); Alropa Corporation v. Snyder, 182 Ga. 305 (185 S. E. 352).

4. Since the entry made on the original security deed on August 17, 1949, showing a reduction in the amount of the monthly payments called for by the original security deed, and the consequent extension of time of payment, was signed by the plaintiff Hall, he, by that agreement, consented to remain liable for the indebtedness secured by his deed, and that the lien of the security deed should not be released thereby, and the plaintiff's contention that such extension of time of payment by the holder of the security deed operated to discharge him and his property from liability is without merit.

5. The trial court erred in excluding the testimony of the witness W. B. Mitchell, set out in the second ground of the amended motion for a new trial, to the effect that the reduction in the interest rate from 8 to 6 percent per annum was made on July 30, 1948, with the knowledge and consent of the plaintiff Hall, and that from that date interest on the indebtedness assumed by the various transferees of the Gordon Cafe property had only been charged at 6 percent, which included the transaction evidenced by the agreement entered on the back of the original security deed, showing the amount then due on the indebtedness and signed by the plaintiff on August 17, 1949, whereby he consented to remain bound for the payment to English of the indebtedness thereby secured. This evidence was relevant and material to rebut the contention of the plaintiff that such reduction in the rate of interest from 8 to 6 percent was without his consent, and amounted to a novation of his contract with English under the provisions of Code § 103-202, and operated to discharge him from liability. See, in this connection, Bethune v. Dozier, 10 Ga. 235; Taylor v. Johnson, 17 Ga. 521; Alropa Corporation v. Snyder, supra.

6. Had the evidence held to have been erroneously excluded in the preceding headnote been admitted, it would have made an issue of fact for determination by the jury as to whether such reduction in the interest rate was with or without the consent of the plaintiff, and such exclusion renders erroneous the direction of a verdict for the plaintiff.

Judgment reversed. All the Justices concur.