Holton v. Smith

Stephens, J.

1. Where several persons who are directors of a banking corporation borrow money which is used for the benefit of the bank, and obligate themselves to repay it, all of the obligors are equally bound to bear the common burden, and where all of the obligors except one make a payment on the obligation, which payment represents their aggregate pro rata shares, their obligation to pay the remainder of the debt (which is the pro rata share of the obligor who did not pay) is, as respects this latter obligor, that of sureties only; and where the obligors who have thus paid their pro rata share of the debt execute as principals, together with the obligor who did not pay, a promissory note to the original obligee for the unpaid amount of the debt which represents the proportionate share of the obligor, who did not pay, they are, as respects the obligor who did not pay, sureties only. Civil Code (1910), § 3841; Duggan v. Monk, 5 Ga. App. 206 ( 62 S. E. 1017 ). Where the sureties paid the note in full, and it was transferred to them by the creditor, although no suit was filed upon it, they were subrogated to the rights of the creditor, and are entitled to recover against the principal, who was the obligor who did not pay, the amount of the note. Dabney v. Brigman Motors Co., 32 Ga. App. 652 ( 124 S. E. 370 ) ; Civil Code (1910), § 3567.

2, The petition set out a cause of action, and the court properly overruled the general demurrer thereto.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.