O.C.G.A. § 10-7-47 (2019)

Annotations

JUDICIAL DECISIONS Benefits of this section are for an actual surety who becomes such on the authority of the principal. Therefore, one who is not a surety would not be entitled to control a judgment or fi. fa. merely because the surety had agreed with the creditor to become such. Taff v. Larey, 29 Ga. App. 631, 116 S.E. 866, 1923 Ga. App. LEXIS 147 (1923). Applicability to involuntary payments. - The language, “who shall have paid off or discharged the judgment,” as employed in this section, applies to an involuntary as well as a voluntary payment. Ezzard v. Bell, 100 Ga. 150, 28 S.E. 28, 1897 Ga. LEXIS 17 (1897). Levy on and sale of surety’s property. - A surety whose property, under an execution against the surety’s principal and the surety, has been levied upon and sold in satisfaction of the sum due the judgment creditor, “pays off and discharges” the debt of the principal, within the meaning of this section. Ezzard v. Bell, 100 Ga. 150, 28 S.E. 28, 1897 Ga. LEXIS 17 (1897). Applicability to partner paying joint judgment. - Former Civil Code 1910, § 5971 (see now O.C.G.A. § 9-13-78), taken in connection with former Civil Code 1910, § 3558 (see now O.C.G.A. § 10-7-47) gave a partner paying off a judgment binding on the partner and a copartner the right to enforce it to its full amount against the partnership assets. Higdon v. Williamson, 10 Ga. App. 376, 73 S.E. 528, 1912 Ga. App. LEXIS 519 (1912). No legal right to subrogation unless surety or compelled to protect interest. - Legal right of subrogation arising out of the payment of the debt of another extends only in favor of a surety for the payment of the debt or in favor of one who is compelled to pay the debt to protect one’s own right or interest, and there is no right of subrogation when, at the time of the payment of the debt, the plaintiff had no claim against or lien upon the property in question. Hiers v. Exum, 158 Ga. 19, 122 S.E. 784, 1924 Ga. LEXIS 72 (1924). Lien takes effect from date of judgment. - When a surety takes

control of the execution against the surety’s principal, the lien of the judgment against the surety’s principal in the surety’s hands takes effect from the date of that judgment. Bailey v. Mizell, 4 Ga. 123, 1848 Ga. LEXIS 12 (1848). Payment after principal’s death entitles surety to proceed against principal’s property. - After a judgment was rendered against an intestate in the intestate’s lifetime, as principal, and the principal’s surety, which judgment was paid by the surety since the death of the intestate, such payment, under the statutes of this state, had relation to the date of the judgment so as to enable the surety to remunerate the surety out of the property of the surety’s principal. Ray v. Dennis, 5 Ga. 357, 1848 Ga. LEXIS 102 (1848). Payment must be entered on execution. - If entry of payment was not made on the execution, the surety would not be able to enforce the contribution against a cosurety provided by former Civil Code 1895, § 2989 (see now O.C.G.A. § 10-7-53). Cureton v. Cureton, 120 Ga. 559, 48 S.E. 162, 1904 Ga. LEXIS 640 (1904). Entry may be made by justice of peace. - A justice of the peace is a collecting officer as to debts sued in the justice’s court and may make, upon an execution issued from the justice’s court against joint defendants, the entry of payment by one of the justices which is required by this section. Higdon v. Williamson, 10 Ga. App. 376, 73 S.E. 528, 1912 Ga. App. LEXIS 519 (1912). Entry may be made by attorney for plaintiff. - When there was no entry on the fi. fa. showing its payment by the endorser, pending a claim case arising under a levy made for the benefit of such endorser, the attorney for the plaintiff in fi. fa. could make the entry. Thomason v. Wade, 72 Ga. 160, 1883 Ga. LEXIS 44 (1883). Surety making payment is protected against fraudulent conveyance. - Surety on bail bond who pays judgment in trover is entitled to the protection afforded creditors as against a

conveyance by the debtor to avoid payment of the judgment. Banks v. McCandless, 119 Ga. 793, 47 S.E. 332, 1904 Ga. LEXIS 362 (1904). Surety’s right limited to reimbursement for actual payment. - If a surety bought a judgment at a discount or, after levy of it upon the surety’s property, obtained control of it by compromise at a price less than the amount apparently due on it, the surety would be entitled to enforce it against the principal for only the amount necessary for reimbursement, after receiving which the execution would be paid off and discharged. Stanford v. Connery, 84 Ga. 731, 11 S.E. 507, 1890 Ga. LEXIS 335 (1890). Part payment gives surety no right of control without tender of amount due. - That a security has paid a part of the amount due on a fi. fa. does not give the security the right to control the same so as to reimburse the security. The security’s rights are secondary to those of the holder of the fi. fa., and in order to control it without the consent of the latter, the security must comply with the requirements of former Code 1873,

§ 2155 (see now O.C.G.A. § 10-7-23) as to tender. Cherry v. Singleton, 66 Ga. 206, 1880 Ga. LEXIS 50 (1880). Transferee from surety cannot enforce execution against surety’s property. - Under former Code 1882, §§ 2167, 2168 and 2169, when a surety paid off a fi. fa. against a principal and the surety personally and takes a transfer thereof, the debt was extinguished as to the surety and the surety became the creditor of the principal; and if the surety thereafter transfers the fi. fa. to another, the surety’s transferee had no right to enforce it against the surety’s property, but only against the property held by the principal. Jennings v. National Bank, 74 Ga. 782, 1885 Ga. LEXIS 398 (1885). Surety was not entitled to capias against principal. - When the principal and sureties in a promissory note were sued and judgment and fi. fa. went against them jointly, the sureties paid off the fi. fa., and the sheriff made an entry to that effect on the fi. fa., the sureties had no right to return the fi. fa. and take out a ca. sa. and arrest the principal. Elam v. Rawson, 21 Ga. 139, 1857 Ga. LEXIS 19 (1857).

OPINIONS OF THE ATTORNEY GENERAL Surety’s right limited to actual expenses. - Surety who completes a contract when the surety’s principal defaults is entitled to moneys due to the

principal only to the extent of the actual expenses of the surety. 1954-56 Ga. Op. Att’y Gen. 662.

RESEARCH REFERENCES Am. Jur. 2d. 74 Am. Jur. 2d, Suretyship, § 119 et seq. Am. Jur. Pleading and Practice Forms. 23 Am. Jur. Pleading and Practice Forms, Subrogation, § 2. ALR. Payment of entire claim of third person as condition of subrogation, 9 A.L.R. 1596; 32 A.L.R. 568; 46 A.L.R. 857; 53 A.L.R. 304; 91 A.L.R. 855. Right of building contractor’s surety who completes contract to money earned by contractor but unpaid before default,

45 A.L.R. 379; 134 A.L.R. 738; 164 A.L.R. 613. Adjudication as essential to right of surety or endorser to be subrogated to payee’s rights in collateral, 62 A.L.R. 551. Right of surety on supersedeas or appeal bond to subrogation, 77 A.L.R. 452. Right to and form of judgment against one discharged in bankruptcy in order to sustain attachment or garnishment or to perfect a right of action against one secondarily liable as surety on a bond given to dissolve the same, 81 A.L.R. 81. Right of subrogation of fiduciary’s surety to claim of the estate against third

person who knew or was chargeable with notice that fiduciary’s transaction with him involved breach of fiduciary’s obligation, 134 A.L.R. 997. Surety’s right to be subrogated to obligee’s right against third person as affected by equities in favor of latter which are insufficient to prevent his liability to obligee, 137 A.L.R. 700. Right of surety who has not paid debt to

judicial protection of right of subrogation to creditor’s securities, 160 A.L.R. 421. Rights and remedies incident to subrogation to one but not both elements of a single cause of action for injury to person and damage to property, 166 A.L.R. 870. Rights and remedies of property insurer as against third-person tortfeasor who has settled with insured, 92 A.L.R.2d 102.