Sitton v. Turner

123 S.E. 750, 32 Ga. App. 401, 1924 Ga. App. LEXIS 418

Opinion

Luke, J.

1. Where a landlord files an affidavit to foreclose his lien for supplies furnished to liis tenant to make a crop for a certain year, and the defendant files a counter-affidavit and replevies the property levied upon, by giving a replevy bond, and where it appears affirmatively that before the foreclosure proceeding the defendant was adjudged a bankrupt, the lien is void and the principal debtor and the surety on the replevy bond are both discharged. Rountree v. Rutherford, 65 Ga. 444.

(«) The decision in the Rountree case, supra, was not overruled in the case of Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 (119 S. E. 25).

(6) Had the foreclosure proceedings been instituted more than four months before the debtor was adjudged a bankrupt, the surety on the replevy bond would not, under the decision in the Oaldxoell case, supra, have been discharged as a matter of law by the discharge of his principal.

2. Under the foregoing ruling and the agreed statement of facts in the instant case, which show affirmatively that the defendant had been adjudicated a bankrupt at the time the foreclosure proceedings were instituted, the trial judge erred in adjudging that the surety on the replevy bond was not discharged.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.