Moncrief v. Atlanta & Lowry National Bank , 36 Ga. App. 371 ( 1927 )

Stephens, J.

1. Since the whole includes a part, and since a promise to pay a certain sum of money includes a promise to pay a part of it, the payment of a part of the principal by the maker of a promissory note and the execution by him of a new note to the payee, in which the time of payment is extended, for the balance due on the principal, at the same rate of interest, constitutes a renewal of the obligation contained in the old note, and is therefore not a novation.

2. It follows that title to collateral placed by the debtor with the creditor to secure 'the original note is not divested by the renewal of the original note at a reduced amount. Partridge v. Williams, 72 Ga. 807; Lowry National Bank v. Fickett, 122 Ga. 489 (50 S. E. 396).

3. Where in such a case the collateral held by the creditor consisted of promissory notes toward which the creditor stood in the relation of a transferee in due course without notice, the creditor was not, upon a renewal of the principal indebtedness and the execution by his debtor of a new note repledging the collateral, after the notes which were pledged as collateral became due, placed in the position of a transferee after maturity who is subject to all the defenses of the maker against the payee of the collateral notes. In a suit by the creditor, as transferee of the notes pledged as collateral, against the maker of the notes, in which the defendant pleaded certain defenses amounting to payment against the payee of the notes, a verdict finding against such plea and in favor of the plaintiff for the full amount sued for was demanded.

Decided February 10, 1927. George P. Whitman, for plaintiff in error. J. II. Porter, contra.

4. The judge of the superior court properly refused to sanction a petition for certiorari, brought by the defendant, excepting to a judgment of the appellate division of the municipal court of Atlanta affirming the overruling of a motion for a new trial filed by the defendant.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.