Mortgage Purchase & Sales Co. v. Williamson , 1936 Ga. App. LEXIS 436 ( 1936 )

Jenkins, P. J.

“An agreement by a creditor to receive less than the amount of his debt can not be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration.” Code, § 20-1204. “The accord and satisfaction must be of some advantage, legal or equitable to the creditor.” § 20-1203. In the absence of a bona fide dispute, mere surrender by the debtor of money already paid or property already admittedly belonging to the creditor, where no advantage or benefit accrues to the creditor beyond that which exists under the original contract, will not constitute an accord and satisfaction. Burgamy v. Holton, 165 Ga. 384 (3) 395 (141 S. E. 42); Red Cypress Lumber Co. v. Beall, 5 Ga. App. 202 (2) (62 S. E. 1056); Molyneaux v. Collier, 13 Ga. 406 (11, 12); Wilder v. Montgomery, 51 Ga. App. 231 (2) (179 S. E. 861); Bass Dry Goods Co. v. Roberts Coal Co., 4 Ga. App. 520 (61 S. E. 1134); Riley v. London Guaranty & Accident Co., 27 Ga. App. 686 (1, c,d) (109 S. E. 676); Hart v. Little, 39 Ga. App. 106 (4) (146 S. E. 338). But even a slight additional advantage or other new consideration to the creditor, such as a waiver of a defense by the debtor, or his agreement to surrender possession of the realty covered by a security deed before he is legally obliged to do so, in exchange for a promise by the creditor that the indebtedness shall thereby be discharged, where the undertaking of the debtor is fully performed and accepted, is a good accord and satisfaction. Although after a default the creditor under a security deed is entitled to maintain ejectment to obtain possession of the property from the debtor (Bennett v. Green, 156 Ga. 572, 579, 119 S. E. 620; Livingston v. Hirsch, 172 Ga. 854, 159 S. E. 253; Carswell v. Hartridge, 55 Ga. 412; Biggers v. Byrd, 55 Ga. 650; Dykes v. McVay, 67 Ga. 502), and although the instrument may expressly give to the creditor the right after a default to enter upon the premises and collect rents and profits, as well as the right to sell the property at public sale after legal advertisement, still the voluntary giving up of possession and of all claim and defense, without the constraint of any proceeding under the contract or under the statute, may afford the basis of a valid satisfaction of the debt, where the debtor’s agreement has been executed. Butts v. Maryland Casualty Co., 52 Ga. App. 838 (184 S. E. 774); 1 C. J. 551, § 70. In the instant action for a deficiency judgment against the debtor, her testimony, although disputed by testimony for the creditor, was sufficient to authorize the verdict in her favor on her defense of accord and satisfaction. The court did not err in refusing a new trial on the general grounds.

Judgment affirmed.

Stephens and Suilon, JJ. concur. John Matthews, for plaintiff. Poole & Fraser, for defendant.