Loganville Banking Co. v. Forrester

87 S.E. 694, 17 Ga. App. 246, 1915 Ga. App. LEXIS 319

• Court: Court of Appeals of Georgia
• Decided: September 25, 1915
• Docket: 5662
• Status: Published

Opinions

Russell, C. J.

1. Under the answer to the certified question propounded by this court to the Supreme Court in this case, the deed was infected with usury. Loganville Banking Co. v. Forrester, 143 Ga. 302 (84 S. E. 961). However, while the plea of usury is a personal one in this State, the debtor’s trustee in bankruptcy is the representative of the debtor, and the defense of usury is as available to the debtor’s trustee as to the debtor himself. In re Stern. 144 Fed. 956 (76 C. C. A. 10, 16 A. B. R. 510, 512). Consequently, in the proceeding brought by the trustee in bankruptcy to avoid the deed made by the debtor and to subject the land thereby conveyed to administration in the court of bankruptcy, the trustee might have pleaded that the deed was void for usury, and, having failed to avail himself of this defense, and the United States district court (which court had jurisdiction of such a question) having adjudged the deed to be a valid conveyance, the bankrupt is estopped by that judgment from asserting the invalidity of the conveyance upon the ground of usury. Res judicata as well Includes that which could properly have been pleaded in the cause as that which was actually pleaded.

2. In view of the foregoing rulings, the court erred in excluding from the jury the certified copy of the transcript of the record in the United States court in the case in which the trustee in bankruptcy of the defendants had sought to avoid the deed, in declining to instruct the jury as requested by the plaintiff in error on the question of res judicata, and in overruling the motion for a new trial.

Judgment reversed.

Broyles, J., not presiding.