creditor claim in Georgia

1936“To constitute a novation by which the original debtor is released, the creditor being bound thereby to discharge the debt as to him and look to another for the payment of his demand, it is essential that a contract be made between the new debtor and the creditor by which the claim can be enforced against the new debtor.” Smith v. Missouri State Life Insurance Co., 45 Ga. App. 383 ( 165 S. E. 168 ).

1936“To constitute a novation by which the original debtor is released, the creditor being bound thereby to discharge the debt as to him and look to another for the payment of his demand, it is essential that a contract be made between the new debtor and the creditor by which the claim can be enforced against the new debtor.” Smith v. Missouri State Life Insurance Co., 45 Ga. App. 383 ( 165 S. E. 168 ).

2011Both BB&T and the defendants indicate that they are appealing the summary judgment order separately. 6 Because we hold that the evidence was sufficient, at least at the interlocutory injunction stage, to prove actual fraud under OCGA § 18-2-74 (b), we need not address BB&T’s alternative claim that the transfers were fraudulent under OCGA § 18-2-75 (a), which provides: A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without re

2007Co. of America v. Atlanta Commercial Bank, 166 Ga. 412 ( 143 SE 562 ) (1928) quoting Wilkins, 131 Ga. at 47 (“subrogation will arise only in those cases [1] where the party claiming it advanced the money to pay a debt which, in the event of default by the debtor, he would be bound to pay, or [2] where he had some interest to protect, or [3] where he advanced money under an agreement, express or implied, made either with the debtor or creditor, that he would be subrogated to the rights and remedies of the creditor.”). 9 See also Federal Land Bank of Columbia v. Barron, 173 Ga. 242, 246 ( 160 SE

2007Co. of America v. Atlanta Commercial Bank, 166 Ga. 412 ( 143 SE 562 ) (1928) quoting Wilkins, 131 Ga. at 47 (“subrogation will arise only in those cases [1] where the party claiming it advanced the money to pay a debt which, in the event of default by the debtor, he would be bound to pay, or [2] where he had some interest to protect, or [3] where he advanced money under an agreement, express or implied, made either with the debtor or creditor, that he would be subrogated to the rights and remedies of the creditor.”). 9 See also Federal Land Bank of Columbia v. Barron, 173 Ga. 242, 246 ( 160 SE

2007Bank of Quitman, 170 Ga. 747 ( 154 SE 234 ) (1930); see also OCGA § 10-7-56 (“[a] surety who has paid the debt of his principal shall be subrogated, both at law and in equity, to all the rights of the creditor and, in a controversy with other creditors, shall rank in dignity the same as the creditor whose claim he paid.”). 2 241 Ga. 436, 438 ( 246 SE2d 297 ) (1978) (emphasis supplied). 3 See Bank of Danielsville v. Seagraves, 167 Ga. App. 135, 141-143 ( 305 SE2d 790 ) (1983) (plaintiff could not prevail under the theory of equitable subrogation because it failed to avail itself of the proper l

2007Bank of Quitman, 170 Ga. 747 ( 154 SE 234 ) (1930); see also OCGA § 10-7-56 (“[a] surety who has paid the debt of his principal shall be subrogated, both at law and in equity, to all the rights of the creditor and, in a controversy with other creditors, shall rank in dignity the same as the creditor whose claim he paid.”). 2 241 Ga. 436, 438 ( 246 SE2d 297 ) (1978) (emphasis supplied). 3 See Bank of Danielsville v. Seagraves, 167 Ga. App. 135, 141-143 ( 305 SE2d 790 ) (1983) (plaintiff could not prevail under the theory of equitable subrogation because it failed to avail itself of the proper l

1975Though it is true that the Uniform Commercial Code does not set out any specific remedy open to the creditor for violation of the bulk transfer provisions, and that the remedies at common law are available to him (American Express Co., S. A. I. v. Bomar Shoe Co., 125 Ga. App. 408 ( 187 SE2d 922 )), the right to use these remedies against the transferee is established by the statute itself.

1975Though it is true that the Uniform Commercial Code does not set out any specific remedy open to the creditor for violation of the bulk transfer provisions, and that the remedies at common law are available to him (American Express Co., S. A. I. v. Bomar Shoe Co., 125 Ga. App. 408 ( 187 SE2d 922 )), the right to use these remedies against the transferee is established by the statute itself.

1956The last sentence of Code § 3-707 provides that mere credits of partial payments will not suffice “to make a mutual account.” A case precisely' in point and controlling in the instant case is Mobley, Ward & Davis v. Pendergrast, 8 Ga. App. 565 (1) ( 70 S. E. 18 ), which holds, "The counter-claim in favor of the defendant which will relieve a plaintiff’s demand from the bar of the statute of limitations must be one dependent upon a demand based on the extension of credit by such debtor to the creditor whose claim is sued on.

1956The last sentence of Code § 3-707 provides that mere credits of partial payments will not suffice “to make a mutual account.” A case precisely' in point and controlling in the instant case is Mobley, Ward & Davis v. Pendergrast, 8 Ga. App. 565 (1) ( 70 S. E. 18 ), which holds, "The counter-claim in favor of the defendant which will relieve a plaintiff’s demand from the bar of the statute of limitations must be one dependent upon a demand based on the extension of credit by such debtor to the creditor whose claim is sued on.

1956To constitute that mutuality of accounts which will relieve the bar of the statute of limitations there must be something more than the mere allowance of a credit item on behalf of the debtor; the debtor must extend credit to his creditor, or the creditor is some way become indebted to his debtor on his own account, and, in the face of his own credit and liability, promise to pay, or no mutuality of account exists.” A similar pronouncement is found in Brazell v. Hearn, 33 Ga. App. 490 ( 127 S. E. 479 ). • 2.

1956To constitute that mutuality of accounts which will relieve the bar of the statute of limitations there must be something more than the mere allowance of a credit item on behalf of the debtor; the debtor must extend credit to his creditor, or the creditor is some way become indebted to his debtor on his own account, and, in the face of his own credit and liability, promise to pay, or no mutuality of account exists.” A similar pronouncement is found in Brazell v. Hearn, 33 Ga. App. 490 ( 127 S. E. 479 ). • 2.

1952While it is true, as contended, that a surety who has paid the debt of his principal is subrogated, both at law and in equity, to all of the rights of the creditor, and, in a controversy with other creditors, ranks in .dignity the same as the creditor whose claim he paid (Code, § 103-501; Livingston v. Anderson, 80 Ga. 175 , 5 S. E. 48 ), yet, under the facts of this case as they are disclosed by the record, Royal Indemnity Company, though subrogated to the rights of the State of Georgia as of November 29, 1948, does not have a lien upon Edenfield Oil Company’s property, because of subrogation

1941Although this principle is not applicable to an administrator, who as an heir or next of kin merely claims *466 and receives Ms proper share of the estate, or as a creditor holds a claim which was liquidated or arose in the ordinary course of business between the decedent as debtor and the claimant as creditor (Crummey v. Crummey, supra; Code, § 113-1202 (5); Groves v. Williams, 68 Ga. 598 (4), 603; Weaver v. Cosby, 109 Ga. 310 (4), 318, 34 S. E. 680 ; Williams v. McHugh, 17 Ga. App. 59 (2), 64, 66, 86 S. E. 272 , and cit.; Harris v. Longino, 20 Ga. App. 311 (2), 93 S. E. 29 , and cit.), the r

1941Although this principle is not applicable to an administrator, who as an heir or next of kin merely claims *466 and receives Ms proper share of the estate, or as a creditor holds a claim which was liquidated or arose in the ordinary course of business between the decedent as debtor and the claimant as creditor (Crummey v. Crummey, supra; Code, § 113-1202 (5); Groves v. Williams, 68 Ga. 598 (4), 603; Weaver v. Cosby, 109 Ga. 310 (4), 318, 34 S. E. 680 ; Williams v. McHugh, 17 Ga. App. 59 (2), 64, 66, 86 S. E. 272 , and cit.; Harris v. Longino, 20 Ga. App. 311 (2), 93 S. E. 29 , and cit.), the r

1941Although this principle is not applicable to an administrator, who as an heir or next of kin merely claims *466 and receives Ms proper share of the estate, or as a creditor holds a claim which was liquidated or arose in the ordinary course of business between the decedent as debtor and the claimant as creditor (Crummey v. Crummey, supra; Code, § 113-1202 (5); Groves v. Williams, 68 Ga. 598 (4), 603; Weaver v. Cosby, 109 Ga. 310 (4), 318, 34 S. E. 680 ; Williams v. McHugh, 17 Ga. App. 59 (2), 64, 66, 86 S. E. 272 , and cit.; Harris v. Longino, 20 Ga. App. 311 (2), 93 S. E. 29 , and cit.), the r

1941Hardeman v. Ellis, 162 Ga. 664 (4), 682 ( 135 S. E. 195 ), and cit.

1941Hardeman v. Ellis, 162 Ga. 664 (4), 682 ( 135 S. E. 195 ), and cit.

1941Although this principle is not applicable to an administrator, who as an heir or next of kin merely claims *466 and receives Ms proper share of the estate, or as a creditor holds a claim which was liquidated or arose in the ordinary course of business between the decedent as debtor and the claimant as creditor (Crummey v. Crummey, supra; Code, § 113-1202 (5); Groves v. Williams, 68 Ga. 598 (4), 603; Weaver v. Cosby, 109 Ga. 310 (4), 318, 34 S. E. 680 ; Williams v. McHugh, 17 Ga. App. 59 (2), 64, 66, 86 S. E. 272 , and cit.; Harris v. Longino, 20 Ga. App. 311 (2), 93 S. E. 29 , and cit.), the r

1941Although this principle is not applicable to an administrator, who as an heir or next of kin merely claims *466 and receives Ms proper share of the estate, or as a creditor holds a claim which was liquidated or arose in the ordinary course of business between the decedent as debtor and the claimant as creditor (Crummey v. Crummey, supra; Code, § 113-1202 (5); Groves v. Williams, 68 Ga. 598 (4), 603; Weaver v. Cosby, 109 Ga. 310 (4), 318, 34 S. E. 680 ; Williams v. McHugh, 17 Ga. App. 59 (2), 64, 66, 86 S. E. 272 , and cit.; Harris v. Longino, 20 Ga. App. 311 (2), 93 S. E. 29 , and cit.), the r

1941Although this principle is not applicable to an administrator, who as an heir or next of kin merely claims *466 and receives Ms proper share of the estate, or as a creditor holds a claim which was liquidated or arose in the ordinary course of business between the decedent as debtor and the claimant as creditor (Crummey v. Crummey, supra; Code, § 113-1202 (5); Groves v. Williams, 68 Ga. 598 (4), 603; Weaver v. Cosby, 109 Ga. 310 (4), 318, 34 S. E. 680 ; Williams v. McHugh, 17 Ga. App. 59 (2), 64, 66, 86 S. E. 272 , and cit.; Harris v. Longino, 20 Ga. App. 311 (2), 93 S. E. 29 , and cit.), the r

1941Although this principle is not applicable to an administrator, who as an heir or next of kin merely claims *466 and receives Ms proper share of the estate, or as a creditor holds a claim which was liquidated or arose in the ordinary course of business between the decedent as debtor and the claimant as creditor (Crummey v. Crummey, supra; Code, § 113-1202 (5); Groves v. Williams, 68 Ga. 598 (4), 603; Weaver v. Cosby, 109 Ga. 310 (4), 318, 34 S. E. 680 ; Williams v. McHugh, 17 Ga. App. 59 (2), 64, 66, 86 S. E. 272 , and cit.; Harris v. Longino, 20 Ga. App. 311 (2), 93 S. E. 29 , and cit.), the r

1936Co. v. Middleport, 124 U. S. 534 (8 Sup. Ct. 625, 31 L. ed. 537); Hiers v. Exum, supra. So where one pays or advances money to pay a note of another person, secured by deed to realty, this being done at the instance of the debtor and maker, and under an agreement that the person so paying will be entitled to the security held by the creditor and to all the rights and remedies of the creditor whose claim is thus paid, such person will be subrogated as against the debtor and all liens and claims inferior to the lien so paid; and in a proper case equity will come to the relief of the payer and su

1900In this connection, the cases of Lane v. Harris, 16 Ga. 217 ; Robinson v. Bank of Darien, 18 Ga. 65 , and Jones v. Wiltberger, 42 Ga. 575 , were cited in support of the proposition that where a stockholder, prior to the filing of a suit against him, had voluntarily discharged debts of the corporation equal in amount to his statutory liability, he could not be compelled to pay anything more at the instance of a creditor whose claim remained unsatisfied.

1900In this connection, the cases of Lane v. Harris, 16 Ga. 217 ; Robinson v. Bank of Darien, 18 Ga. 65 , and Jones v. Wiltberger, 42 Ga. 575 , were cited in support of the proposition that where a stockholder, prior to the filing of a suit against him, had voluntarily discharged debts of the corporation equal in amount to his statutory liability, he could not be compelled to pay anything more at the instance of a creditor whose claim remained unsatisfied.

1900This is so because, if the indorser should be compelled to pay the debt,- he would, in equity, become immediately subrogated to all of the rights of the creditor whose claim he satisfied. 3; The- principle announced in the third headnote is fully sustained by the decision in Baker v. Gladden, supra, and the reasoning of Mr. Justice Blandford in support of the same. 4.

1900In this connection, the cases of Lane v. Harris, 16 Ga. 217 ; Robinson v. Bank of Darien, 18 Ga. 65 , and Jones v. Wiltberger, 42 Ga. 575 , were cited in support of the proposition that where a stockholder, prior to the filing of a suit against him, had voluntarily discharged debts of the corporation equal in amount to his statutory liability, he could not be compelled to pay anything more at the instance of a creditor whose claim remained unsatisfied.

1900The case of Boyd v. Hall, 56 Ga. 563 , wherein it was ruled that “ A bona fide judgment debt of a stockholder against the company in which he holds stock may be set off by him in equity against a suit to make him individually liable in proportion to his stock,” was also relied on.