Allied Mortgage Co. v. Atlanta Title & Trust Co. , 1938 Ga. App. LEXIS 255 ( 1938 )

Felton, J.

An allegation of the mere fact that a mortgagee company paid off a lien on property to protect itself is not an allegation of loss by reason of such payment. Accordingly, the general demurrer to a petition by a mortgagee against a title-insurance company ón a title-insurance certificate indemnifying the mortgagee against all loss or damage which it should sustain by reason of defect or defects of title affecting the premises the title to which was insured, or affecting the interest of the mortgagee, or by reason of liens or incumbrances charging the same, should have been sustained in the absence of allegation that the mortgagee had actually suffered a loss by reason of the existence of a lien paid off by the mortgagee because of the mortgagee’s inability to collect the amount of such lien from the mortgagor who was the person primarily liable for the payment of the lien. The error in overruling the general demurrer rendered nugatory the subsequent proceedings.

Decided July 13, 1938. Adhered to on rehearing, July 27, 1938. W. L. Bryan, Garitón Mobley, for plaintiff. Tye, Thomson & Tye, B. A. Bdmondson, for defendant.

Judgment reversed on the cross-bill of exceptions. Writ of error on the main bill of exceptions dismissed.

Stephens, P. J., and Sutton, J., concur.