53 Ga. App. 565 | Ga. Ct. App. | 1936
This was a suit on a note by the plaintiff bank against the defendant wife as principal maker, and the defendant husband as surety. The wife executed in favor of the bank as security for the note, a mortgage on certain realty belonging to her. The plaintiff prayed for judgment against the land as well as a general judgment on the note. The original note, of which the one sued on is a renewal, was signed by the husband and the wife as apparent joint makers. The wife filed her plea setting up that she signed -the note as surety for her husband, and that she received no benefit therefrom. There was evidence in behalf of the defendants that the money was borrowed by the husband, with the wife signing the note as surety, and the money was credited to the husband's account in the bank; that the arrangements for the loan were made by the husband, and-he offered his wife and the mort
1. The separate property of the wife is not liable for the payment of any debt or contract of the husband; and “while the wife may contract, she may not bind her separate estate by any contract of suretyship nor by any assumption of the debts of her husband, and any sale of her separate estate, made to a creditor of her husband in extinguishment of his debts, shall be absolutely void.” Code, §§ 53-502, 53-503. A note made by the wife for a loan to her husband, and indorsed by him, where the payee of the note knows this fact at the time of its execution, can not be collected from her by the payee. Knox v. Harrell, 26 Ga. App. 772 (107 S. E. 594, 108 S. E. 117). And a mortgage or security deed to real estate of the wife to secure such loan, executed by the wife simultaneously with the note, does not bind her separate estate. Knox v. Harrell, supra; Gross v. Whitely, 128 Ga. 79 (57 S. E. 94). Pursuant to the provisions of the above Code sections it has often been held by the Supreme Court and by this court that a wife can not make any contract of suretyship for her husband or for any other person. Ulman-Magill & Jordan Woolen Co. v. Magill, 155 Ga. 555 (117 S. E. 657); Hester v. Dreyer, 19 Ga. App. 816 (92 S. E. 299); Saulsbury Co. v. Weaver, 59 Ga. 254. A conveyance of the wife's land as security for the debt of her husband is void. Campbell v. Murray, 62 Ga. 86; Gross v. Whitely, supra.
2. Whether a note and deed or mortgage were made by the wife as a part of a transaction to secure a debt of her husband, or for the purpose of paying the debts of her husband, is a question for the jury; and it may be shown by parol that the wife signed the note as surety. Hawkins v. Kimbrell, 158 Ga. 760 (124 S. E. 351); Colquill v. Dye, 29 Ga. App. 247 (114 S. E. 643); Benson
3. “Where a married woman signs a note ostensibly as a maker jointly with her husband, when in fact she is a surety only, before she can establish the fact of her suretyship as against the payee of the note it must be made to appear, despite her apparent relationship as principal, that the payee, with knowledge of the facts which would constitute her a surety, contracted with her as a surety.” Tuck v. Kellum, 36 Ga. App. 465 (137 S. E. 102); Bennett v. Danforth, 36 Ga. App. 466 (137 S. E. 285); Boles v. Hartsfield Co., 50 Ga. App. 442 (178 S. E. 416). In a suit against a wife on a note signed by her as apparent maker, the burden is on her to show that the payee had knowledge of the fact that she signed the note as surety for her husband. Farmers &
4. The evidence did not demand a verdict for the bank as against the wife. The husband admitted his liability as a principal maker; so a verdict in his favor was not authorized, and no error was committed as to him. The motion for new trial of the husband was properly overruled. On account of the error in division 2, supra, a new trial is granted to the wife, the evidence not demanding the verdict against her.
Judgment reversed in part and affirmed in part.