13 Ga. App. 309 | Ga. Ct. App. | 1913
This is the second appearance of this case before this court. The issues are specifically set out in the statement of facts in Cook v. Hightower, 11 Ga. App. 657 (75 S. E. 1058).
As was held by Judge Jackson in King v. Thompson, 59 Ga. 380, "Whether or not a married woman who signs a note with her husband is responsible out of her separate estate therefor turns upon the question whether she signed to raise money on her own account, or as surety, or to assume a debt of her husband. If the note was signed in regard to her own business conducted by her husband for her, she is bound; if as surety for him in his business, or to pay his debts, her separate estate is not bound.” Judge Bleckley, in Schofield v. Jones, 85 Ga. 824 (11 S. E. 1034), puts the point more sententiously by saying, "the true test of the real debtor or debtors is, to whom did the consideration pass?” If the note here involved represents a valid debt at all, it is. practically undisputed that it represents the purchase-price of a tract of land which is in the possession of Mrs. Cook and over which she has exercised
That a debt can be created which in contemplation of law would be a debt of the wife as well as the' debt of her husband has been frequently recognized by the Supreme Court. It is so recognized, as to joint notes, in Mashburn v. Gouge, 61 Ga. 513, in Wingfield v. Rhea, 73 Ga. 447, and in Harrold v. Westbrook, 78 Ga. 5 (2 S. E. 695). In the much earlier case of Skinner v. Allen, 49 Ga. 557, a verdict against the wife was upheld because it appeared that she was the beneficiary of some of the transactions of which the draft which was the basis of the suit formed a part. The fact that the transaction may have been carried on by the husband as agent for his wife would not affect the rule. This was held in King v. Thompson, supra. In Schofield v. Jones, supra, Chief Justice Bleckley said that the joining with the husband in contracting a debt is not an assumption by the wife of his debt, “for he has no debt existing to be assumed, and the debt created is her own from the beginning. Moreover, there is nothing contrary to public policy in allowing
Though the defendant in the present case adduced testimony which would have authorized a finding in her favor, there was sufficient evidence in conflict therewith to warrant the verdict; and no material error appears in any of the rulings upon the admissibility of the testimony.