dissenting. I think the court properly overruled the demurrer, and that the case reached its proper conclusion in the lower court. Indeed, it reached the only conclusion possible under the ruling of this court in Valdosta &c. R. Co. v. Valdosta Bank & Trust Co., 144 Ga. 761 (87 S. E. 1083). There is no estoppel as to Davis by anything that appears in the record; for he had the right to presume that when Jones delivered the bonds in accordance with his bid or oiler, the delivery would occur after he had obtained title to the bonds, which the decision in the case of the railroad against the Valdosta bank, supra, held he did not have, and expressly held that there would be a surplus. The figures in that case show that the court, while holding that Jones was the mere holder of collateral and not the owner of these bonds, would leave a surplus of nearly $5,000.00, which Jones would have to pay as an individual -before he as an individual would be in a position to present the bonds. Although Jones is the president of the Valdosta bank, and the decree foreclosing the mortgage upon which the bonds were issued was properly for the sum total due upon those bonds, nevertheless, before Jones as an individual could comply with his bid he would be obliged, under the ruling in the case supra, to have paid to the Valdosta bank the value of the bonds as held by this court; and Davis (this fund being then in the hands of the bank) would, in my opinion, have been entitled in equity to have the balance on his note paid out of the surplus which would thus have accrued. Thus his risk was increased, and as a surety he was discharged.

(After stating the foregoing facts.) This court is of the opinion that the demurrer to the petition should have been sustained, and that it was error to overrule it. In the first place, the cancellation of the decree in the foreclosure suit and the delivery of the bonds which were originally held by the bank as security for the note of the railroad company to the bank, on which petitioner was a surety, was in accordance with the decree of the court rendered in a suit to which Davis himself was a party. The decree to which reference is made here is the one finally disposing of the ease after Davis was made a sales commissioner. Moreover, the petitioner himself participated in the final transactions, to which effect was given by decree of the court, under the terms of which Jones was bound to turn over all the bonds and the bank to cancel the decree rendered in the foreclosure suit. And to the provisions of the decree, though Davis was in a position to resist or object to them had they been objectionable, he made no objections and took *753no exceptions, but presumably participated in bringing about the results upon which the decree was based; and of course under such circumstances he might be held to have consented to the decree. He cannot complain that he was injured by an act thus done with his consent; and his petition seeking relief against the judgment for the balance due on the note from the railroad company to the bank is without equity, and the demurrer of the defendant to the petition should have been sustained.

Having held that the court erred in overruling the demurrer to the petition, it is unnecessary to pass upon the motion for a -new trial, as all that was done after disposing of the demurrer to the petition was nugatory.

Judgment reversed.