Washington v. Cartwright

Jackson, Justice. This case came before the superior court on a certiorari to the justice of the peace for one of the districts of Carroll county, whereupon the superior court sustained the certiorari and remanded the case for a new trial in the justice-court, and the plaintiff in error excepted. The answer of the justice of the peace adopts the petition as true, and this case is made in the record: A horse was levied on as-the property of Cartwright under a ft. fa. in favor of Washington; the horse had been set apart as exempt [178] from levy and sale under §2040 et seq. of our Code; the plaintiff said the horse was liable, because the judgment was for purchase money; the defendant made a counter-affidavit, and this made the issue between the parties. The facts were that Cartwright traded for the horse from one McCalman; McCalman owed Washington for land; Cartwright was to give the amount of the note on which this judgment was founded, as boot to McCalman in the exchange of horses; before he gave his note for the amount, it was agreed that he should give the note to Washington, and that Washington would release McCalman from the payment of that sum on the land, and thereupon the note was given and made payable to Washington, and renewed, and suit brought on the renewed note, and judgment and execution were based thereon, and this levy was made on the horse, and issue joined on the question whether the consideration of the note was purchase money for the horse, or the extinguishment of McCalman’s indebtedness for the land to the extent of the amount of the note. The court ruled that the consideration thereof, was not the purchase money for the horse, but the payment of McCalman’s debt to Washington. We think that the court ruled correctly. The question is controlled by the cases reported in 40 Ga., 423 and 487, and 60 Ga., 456. In the last named report, it was held that “the substitution of debtor for debtor, was not infrequent,” and in such case “ that the undertaking was not collateral but original, and performance may be enforced between the new parties, no matter what equities between the primary contractors may have existed.” It is wholly immaterial to the contract between Washington and Cartwright, what equities existed between Cartwright and McCalman, or what consideration moved Cartwright to acknowledge himself to have been McCalman’s debtor. By this new contract he became, by substitution, Washington’s debtor, and was bound to pay Washington, because Washington had released McCalman to the amount of the note; or, [179] in other words, the extinguishment of McCalman's debt to Washington was the consideration of' Cartwright’s debt to Washington. The horse had nothing to do with that trade. If it had been a gaming debt that he owed McCalman, as was the case in 60 Ga., supra, or the consideration of that debt had been anything else than the horse, his obligation to pay Washington would have been just as binding. Its consideration was the agreement by Washington to extinguish McCalman’s indebtedness to him, and the agreement by McCalman to extinguish Cart-right’s indebtedness to him. Thereupon, the horse debt was extinguished and the land debt acknowleged. The horse never was Washington’s. It was the land that he sold, and it was for the land .that Cartright agreed to assume a debt which McCalman owed. Therefore we_ are of the opinion that the court was right to sustain the certiorari, and hold the horse to be exempted from the payment of a debt owing for the land. Judgment affirmed.