The surety may tender to the creditor the amount of his debt and demand that the evidence of and the securities for the same be delivered up to him to be enforced against his principal or cosureties; and a failure of the creditor to comply, when within his power, shall operate to discharge the surety.
(Orig. Code 1863, § 2132; Code 1868, § 2127; Code 1873, § 2155; Code 1882, § 2155; Civil Code 1895, § 2973; Civil Code 1910, § 3545; Code 1933, § 103-204.)
Law reviews.- For article surveying developments in Georgia commercial law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 33 (1981).
JUDICIAL DECISIONS
Only person making tender is discharged.
- This section provides only for the discharge of the person whose tender was refused. Hall v. First Nat'l Bank, 145 Ga. App. 267, 243 S.E.2d 569 (1978).
Burden upon surety to prove tender and demand.
- When, to an action by the former state superintendent of banks, the surety pleaded that the surety was discharged by a refusal of a tender and demand allowable under this section, the burden was upon the surety to prove that the tender and demand had been made either to the superintendent of banks or to one duly authorized by the surety, as provided by statute, to make collections for the bank. Bennett v. Simmons, 30 Ga. App. 529, 118 S.E. 493 (1923), later appeal, 39 Ga. App. 272, 146 S.E. 799 (1929).
Transfer of security proper.
- Summary judgment for a bank was properly entered after the bank demanded that a guarantor pay off an outstanding business debt, and upon demand of the guarantor, transferred the security for the loan, a mortgage on the homeowners' home, to the guarantor; under O.C.G.A. § 10-7-23, upon demand, the bank was required to transfer the securities to the guarantor paying off the debt or it would lose the ability to enforce the debt against the guarantor. Phillips v. First Bank of Ga., 257 Ga. App. 342, 571 S.E.2d 410 (2002).
Cited in Northcutt v. Crowe, 116 Ga. App. 715, 158 S.E.2d 318 (1967); Jessee v. First Nat'l Bank, 154 Ga. App. 209, 267 S.E.2d 803 (1980).
RESEARCH REFERENCES
Am. Jur. 2d.
- 74 Am. Jur. 2d, Suretyship, § 132 et seq.
C.J.S.- 72 C.J.S., Principal and Surety, §§ 106, 112.
ALR.
- Release of payee from warranty constituting a part of the consideration for a note as releasing a surety, 7 A.L.R. 1605.
Incapacity of principal to contract as affecting liability of guarantor or surety, 24 A.L.R. 838; 43 A.L.R. 589.
Application of payments as between debts for which a surety or guarantor is bound and those for which he is not, 57 A.L.R.2d 855.