Lane v. Collier , 46 Ga. 580 ( 1872 )

Montgomery, Judge.

The position of counsel for plaintiff in error in this case was that the contract for the purchase of the land was one thing, the indorsement of a note of a third person in settlement, as he contended, quite another. In the first case, the purchaser was the primary debtor; in the second, his liability wras subordinate to that of the maker; that his indorsement, and Collier’s acceptance of it, put him in the position of a mere surety; that the indebtment for the sale of the land was extinguished, and Collier must look to the contract as contained in the note, which was not given for the purchase money of the land, and that, therefore, an execution issuing from a judgment obtained upon the note, could not be levied on the land after it had been set apart as a homestead; that there is a novation here by the introduction of a new party, and the old contract is destroyed. The argument of the learned counsel is certainly ingenious, and displays great subtleness and fertility of resource. The doctrine contended for is undoubtedly correct, under our law, that the indorser is a surety; but not only surety — and herein consists the fallacy — lie is still an indorser, and the common law principles applicable to that character still adhere to him. Every indorsement of a promissory note is the drawing of a bill of exchange by the indorser upon the maker. Suppose the trade had been a cash transaction, and Lane, instead of paying the actual cash, had drawn a draft upon his factor in Augusta, to whom he had sent his cotton. Would the acceptance of this draft by Collier have discharged Lane as primary debtor, and have amounted to a novation of the contract? Or suppose he had given Collier a check upon a bank for the money and the bank had failed before it could be presented, would Lane be only secondarily liable on such a paper? The facts show that Collier took the note on the faith of Lane’s indorsement, and the land was the consideration of the indorsement, refine upon it as we may, and Collier had the right to look to Lane in every character in which the nature of the transaction legally placed him, whether as surety, indorser, or drawer of a bill, or even as maker of a note — for every indorsement is said to be the making of a new note. As to novation no new party is introduced into the contract between Lane and Collier — that contract is only represented by the indorsement. The maker of the note was not present and joining in that, but a contract which the maker had formerly made with Lane was by the latter transferred to Collier. Suppose it had been an open account so transferred, would the debtor on an open account have been a party to the contract ?

In any view we take of it we cannot divest the case of the prominent fact that Lane indorsed the note for the land, and that a judgment against him as such indorser is a judgment for the purchase money of the land, and takes precedence of the homestead.

We, therefore, affirm the judgment, provided the plaintiff in fi. fa. will dismiss his levy upon all land included in the homestead of the plaintiff in error, which was not purchased from Francis P. Collier.

Judgment affirmed.