Walker v. Hillyer

• Decision Date: 16 February 1906
• Citation: Walker v. Hillyer, 124 Ga. 857, 53 S.E. 313 (Ga. 1906)
• Parties: WALKER. v. HILLYER.
• Court: Georgia Supreme Court

53 S.E. 313

(124 Ga. 857)

WALKER.

v.HILLYER.

Supreme Court of Georgia.

Feb. 16, 1906.

1. Estoppel — Representations — Validity of Note.

The maker of a note tainted with usury, who, after its maturity, induces another to purchase it, representing that there is a stated amount due, and promising to pay that sum at a later date, is, when it appears that the purchaser acted in good faith, and there is no evidence showing that he knew of the usury, estopped from pleading that there was usury in the original transaction.

[Ed. Note.—For cases in point, see vol. 19, Cent. Dig. Estoppel, §§ 222-226; vol. 47, Cent Dig. Usury, § 259.]

2. Certiorari—Form of Judgment.

When a judgment is rendered in a justice's court against husband and wife on a joint note, and the case is carried by certiorari to the superior court, and the defendant in certiorari agrees that the judgment against the wife is erroneous for the reason that her contract was one of suretyship, the judge may properly sustain the certiorari as to the wife and overrule it as to the husband.

3. Bills and Notes — Evidence — Sufficiency.

The evidence authorized the verdict against the husband, and there was no error requiring the grant of a new trial as to him.

(Syllabus by the Court.)

Error from Superior Court, Floyd County; W. M. Henry, Judge.

Action by J. F. Hillyer against Caleb Walker and another. There was judgment for plaintiff, and defendants bring certiorari, which was sustained as to defendant Lula Walker, and dismissed as to defendant Caleb Walker, who brings error. Affirmed.

Hillyer, transferee, brought suit upon a promissory note for $18 and interest against Caleb Walker and Lula Walker. The defendants filed separate pleas. Lula Walker set up that she signed the note as surety for her husband and did not receive any of the money obtained on it, and that it was tainted with usury. Caleb Walker pleaded usury, setting up that he obtained $15 as the principal sum, and paid as interest from July to December, 1901, $16.60; further, that the plaintiff became the owner of the note seven months after its maturity, and hence was on notice as to any defense the makers might have against the payee. It was admitted that the note was tainted with usury. The amounts paid by Caleb Walker were disputed. Hillyer became the owner of the note under the following circumstances: Caleb Walker requested Hillyer to take up a note, which he and his wife jointly owed, secured by a mortgage on their home, to one Busbin. Walker promised to labor on Hillyer's farm in payment of the note. Hillyer told Walker to find out the exact amount due, and let him know. Walker reported that $18 was due, and Hillyer told him if the papers were all right he would take up the note. Hillyer paid Busbin $18, and had the note transferred to him, without recourse. Caleb Walker failed to do any work for Hillyer, as promised, and suit was brought upon the note. The case was tried before a jury in a justice's court, who found for the plaintiff $17.25 principal, and $4.18 interest. A petition for certiorari was sued out by both defendants, which set out the foregoing facts. After a hearing the certiorari, by consent of the defendant in certiorari, was sustained as to Lula Walker...