Singleton, Hunt & Co. v. Patillo

Blandford, Justice. The question in this case is, whether a creditor of an insolvent debtor can recover of another creditor of such debtor usury which has been paid by the debtor to such creditor, either in money or property. It is contended by the plaintiff in error that a recovery can be had in such case; and the case of Pope vs. Solomons et al., 36 Ga. 541, is relied on to sustain the proposition. But in that case, it will be observed that usury had not been paid, and that the money of the debtor, who was an absconding debtor, was in the hands of a trustee to be paid to Solomons, but the payment had not been made. Under such circum [271] stances, the court in that case held that a court of equity would enjoin the payment of the money to Solomons upon a usurious contract, at the instance of a creditor who held a debt against the absent debtor not tainted with usury; but the facts in this case differ materially from the facts in that case. The question here, is stated above, and no law has been shown to us, and we imagine none can be shown, which will authorize a creditor, under the facts stated in the bill in this case, to recover usury which has been paid to another creditor by an insolvent debtor. See the case of Hicks vs. Marshall, 67 Ga. 714; Hull vs. Harris, 70 Ga. 832. The right to set up usury as a personal privilege has been decided 45 Ga. 519; 48 Ga. 58; 49 Ga. 45. So we think that the decree of the court below sustaining the demurrer to this bill was right, and should be affirmed.