Hardin v. Neal Loan & Banking Co.

Atkinson, J. 1, 2. When the maker of a bond for title complies with the conditions thereof, he is entitled to a surrender thereof, or a showing that the same can not afterwards be used against him. This rests upon the reason which entitles the maker of a promissory note to the surrender thereof upon payment by the payee. That such is the law is not an open question. Moultrie Repair Co. v. Hill, 120 Ga. 732; Jackson v. Brown, 102 Ga. 87; Belmont Farm v. Dobbs Hardware Co., 124 Ga. 827; Hodges v. Smith, 118 Ga. 789. The maker of the bond being entitled to its surrender upon executing the deed, it follows that the holder of the deed in escrow is entitled to the same protection. He is a mere agent, and could not be required to do, with reference to the subject-matter of the agency, anything which could not be required of the principal. Consequently the Neal Loan & Banking Company was entitled to demand a surrender of the bond, or a showing at the time of delivery of the deed that the bond was not in any event enforceable ■ against the maker. 3,4. But so far as the allegations of the petition are concerned, this was done. It is alleged that the bond was in fact in the possession of the Neal Loan & Banking Company, and there were no additional allegations of fact sufficient to constitute a right in the Neal Loan & Banking Company, in its individual right, to hold the bond for title as against the plaintiff. It is merely alleged that during the lifetime of Dohme he had placed the bond in the hands of that company. For what purpose it is not alleged. It may have been merely for safe-keeping. It is alleged that ever since the bond was placed in the hands of the Neal Loan & Banking Company it has been retained by that institution, claiming to hold it in pledge as security for the payment of a debt due by a firm of which Dohme was a member, • evidenced by a promissory note signed “Dohme & Corrigan Grocery Co., per Robert H. Dohme, Manager.” It is further alleged that as a matter of fact the bond for title was, never transferred in writing to any one. Without a transfer, even if the bond had been delivered in pledge, the Neal Loan & Banking Company would not have acquired title or a lien upon the property which it could have enforced by suit. Davis v. Davis, 88 Ga. 191; Johnson v. Coney, 120 Ga. 776; Fleming v. Ga. R. Bank, 120 Ga. 1027. There is no allegation in the petition that Dohme deposited the bond for title as collateral security in order to induce the bank [823] to advance money on the strength of such deposit, and that the money so advanced had not been paid. Had the petition contained such allegations as those, a different question would be presented. The question would then be, could‘the plaintiff come into a court of equity and ask for equitable relief, without first having done equity by paying the debt for which the bond was deposited as security. The original petition having been dismissed upon the ground that it set forth no cause of action, we are not at liberty to consider anything which was contained in the defendant’s answer. The decision must be restricted to the merits of the petition, and, a cause of action having been set forth therein, the court committed error by dismissing, the same. Judgment reversed. All the Justices concur, except Fish, C. J absent.