Denton v. Butler & Stevens
Supreme Court of Georgia
Complaint on note. Before Judge Sweat. Ware superior court. November term, 1895. A promissory for $1,000, dated November 17, 1893, and due at thirty days, containing a waiver of homestead, etc., was executed by Spence & Co. to the South Georgia-Bank of Waycross, and was indorsed by W. M. Denton. After it fell due it was assigned by the bank to the plaintiffs without recourse.
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Complaint on note. Before Judge Sweat. Ware superior court. November term, 1895. A promissory for $1,000, dated November 17, 1893, and due at thirty days, containing a waiver of homestead, etc., was executed by Spence & Co. to the South Georgia-Bank of Waycross, and was indorsed by W. M. Denton. After it fell due it was assigned by the bank to the plaintiffs without recourse. Suit upon it was defended by Den-ton, on the ground that he was a surety and was discharged, by usury having been taken by the bank. . The court directed a verdict for the plaintiffs, and overruled Denton’smotion for a…
1Opinion of the CourtSimmons, C. J.
1. A surety upou a promissory note secretly' tainted with, usury, of which fact he had no knowledge, is discharg.ed from liability if it contained a waiver of homestead. This is so because the usury made the waiver void and thus, rendered the surety’s risk greater than it would otherwise have-been. Lewis v. Brown, 89 Ga. 115; Harrington v. Findley, Id. 385; Howard v. Johnson, 91 Ga. 319.
2. In an action on such a note it is incumbent upon the plaintiff,, in order to hold the surety liable, to prove affirmatively that, he signed the note with knowledge of the usury.
Judgment r&wrsed.
■Leon A.…
2Cases cited1 opinion
- Howard v. JohnsonSupreme Court of Georgia · 1893
3Cited by8 opinions
- Prather v. SmithSupreme Court of Georgia · 1897
- Middlebrooks v. PhillipsCourt of Appeals of Georgia · 1929
- Washington Loan & Banking Co. v. HollidayCourt of Appeals of Georgia · 1921
- First National Bank v. McEntireSupreme Court of Georgia · 1900
- Bank of Omega v. FordCourt of Appeals of Georgia · 1917
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