O.C.G.A. § 10-7-43 (2019)
Recovery of usury paid by surety
If the contract was originally usurious and the surety in making payment includes the usury, he shall recover the same from the principal unless previous to the payment he had notice of the intention of the principal to resist usury.
History
Orig. Code 1863, § 2141; Code 1868, § 2136; Code 1873, § 2163; Code 1882,
§ 2163; Civil Code 1895, § 2982; Civil Code 1910, § 3554; Code 1933, § 103-304.
Annotations
JUDICIAL DECISIONS Surety may recover usury surety pays. - Usury paid by a surety on a contract originally usurious may be recovered back by the surety. Whitehead v. Peck, 1 Ga. 140, 1846 Ga. LEXIS 49 (1846). Knowledge that contract was usurious. - If the surety knew the contract to be usurious when the surety paid the debt, the surety cannot recover it back out of the surety’s principal. Jones v.
Joyner, 8 Ga. 562, 1850 Ga. LEXIS 98 (1850). Knowledge that principal intended to resist usury. - A surety cannot recover usury paid by the surety if, previous to the payment, the surety had knowledge of the intention of the principal to resist the usury. Lay v. Seago, 47 Ga. 82, 1872 Ga. LEXIS 306 (1872). Failure of surety to plead known usury. - If the surety had notice of the
usury and might have pleaded it, but did not, the surety is estopped to recover it of the principal. Hargraves v. Lewis, 3 Ga. 162, 1847 Ga. LEXIS 91 (1847). Principal reimbursing surety cannot recover usury paid voluntarily from creditor. - When a surety who is indemnified by a mortgage
voluntarily pays a usurious note and is subsequently reimbursed by the surety’s principal in property, the latter cannot recover of the creditor the excess of interest in an action for money had and received. Whitehead v. Peck, 1 Ga. 140, 1846 Ga. LEXIS 49 (1846).
RESEARCH REFERENCES C.J.S. 72 C.J.S., Principal and Surety, § 183.