American National Bank v. East Atlanta Bank

95 S.E. 286, 147 Ga. 750, 1918 Ga. LEXIS 133

• Court: Supreme Court of Georgia
• Decided: March 12, 1918
• Docket: No. 523
• Status: Published

Opinion

Gilbert, J.

(After stating the foregoing facts.) The American National Bank, by virtue of its contract with the maker of the note described -in the foregoing statement, held the stock in the East Atlanta Bank as security for the note, and was authorized to sell the stock for the payment of the debt, without resorting to a suit on the note, the obtaining of a judgment, and a sale by the sheriff; but this was a cumulative right, and not exclusive. Judgment was obtained, the stock was levied upon by the sheriff, and was sold .with all the legal formalities required by law, the plaintiff becoming the purchaser. The special lien of the plaintiff on the stock was based on the contract, and dated, not from the rendition of the judgment, but from the execution of the contract between the parties. Spradlin v. Kramer, 146 Ga. 396 (91 S. E. 409). The American National Bank was a bona fide creditor. It advanced money on the shares of stock without notice of any by-law lien. The contract lien is superior. Owens v. Atlanta Trust & Banking Co., 122 Ga. 521 (50 S. E. 379). Notice of the.by-law lien at the time of the sale of the stock cannot operate to defeat the contract lien previously acquired. This is not a case of a judgment creditor whose rights arise only out of the judgment. This is a proceeding solely for mandamus to require a transfer of the stock to the purchaser. The court therefore erred in rendering judgment refusing mandamus absolute.

Judgment reversed.

All the Justices concur.