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.

(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.)

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).

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).

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).

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), later appeals, 6 Ga. 207 (1848), 7 Ga. 110 (1849).

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).

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2018 Georgia Code 10-7-43 | Car Wreck Lawyer

TITLE 10 COMMERCE AND TRADE

Section 7. Suretyship, 10-7-1 through 10-7-57.

ARTICLE 3 RIGHTS OF SURETY AGAINST PRINCIPAL, COSURETIES, AND THIRD PERSONS

10-7-43. Action for money paid, interest, and costs - Recovery of usury paid by surety.