2 Ga. App. 839 | Ga. Ct. App. | 1907
The Farmers and Traders Bank sued Mary J. Eubanks on a promissory note made by her to her husband, which • he had indorsed and transferred to the bank before maturity as collateral security for a loan made to him by said bank. The defendant filed an answer in which she. averred, that the note was without consideration, and that the bank received the note with knowledge that the same was executed by her as a contract of suretyship or in assumption of a debt which her husband owed said bank; and that for these reasons the note was void as to. her and not binding on her separate estate.- On the conclusion of the evidence, the court directed a verdict for the defendant; and the bank assigns error. The evidence in the record is brief, consist
Does this evidence with all reasonable deductions and inferences therefrom demand the verdict directed for the defendant? In this State there are three restrictions upon the rights of a married woman as to her separate property: (1) She can not bind her separate estate by any contract of suretyship. (2) She can not- assume the debts of her,husband, and her estate is'not liable
The question, under this evidence, is, can a married woman set up this defense to a holder of negotiable security who takes it bona fide for value without notice of invalidity, and before due? In the cases above cited, as well as in many others, the Supreme Court has ruled that while a wife can not make a contract of suretyship or legally assume a debt of her husband, yet when she has given a negotiable note for his debt, and it has been transferred to a bona fide holder for value before due and without notice, it is valid and binds'her. In other words, the wife’s rights must be construed with reference to the rights of the bona fide holder. In protecting her the law does not permit her, either by herself or by her husband, to perpetrate a fraud on the innocent,
. If, trusting to the document she has signed, sealed and delivered, any person should be honestly misled-by it, why should she not abide the consequences? . . Our conclusion is, that a conveyance amenable -to section 1783 of- the Code (now Civil Code, §2488) is ‘ absolutely void’ as between the maker and all persons affected with notice, but that a subsequent bona fide purchaser, for value, and without notice, is protected.” This language was used in reference to a deed executed by the wife to her separate property, but it is equally applicable to a negotiable note executed by her. Indeed we think that the exigencies of commercial transactions require that innocent purchasers of negotiable instruments before due should have the strongest protection; and Avhere no-infirmity appears on their face, every presumption should be invoked in favor of the validity of such instruments and the title-of the holder.
The code of Georgia in asserting the principle of law so firmly imbedded in jurisprudence, that a bona fide purchaser of a negotiable instrument for a consideration, before maturity, is protected, limits the defenses that can be set up by the maker, acceptor, or indorser, as against the rights of such holder, to only the three of non est factum, gambling or immoral and illegal consideration, and fraud in its procurement. Civil Code, §3694. Neither of these is set up in this case. It is admitted that the plaintiff bank obtained the note for a consideration, before maturity! Unless the note carries upon its face sufficient indicia of
Does the fact that the note of the wife was payable to the husband import notice of any invalidity or infirmity? The only law in this State which restricts a wife from making a contract for her own benefit with her husband is contained in section 2490 of the Civil Code: “No contract of sale of a wife as to her separate estate with her husband or her trustee shall be valid, unless the same is allowed by order of the superior court of the county of her domicile.” The right to contract generally for her own benefit is conferred upon a married woman by the act of 1866. She has the same rights as a man, except as to contracts of suretyship and contracts which assume the payment of the husband’s debt. Code section 2490 restricts the general right of a married woman to make contracts, and should not be extended by construction beyond the clear and manifest purpose of the statute. The express terms of the section apply only to contracts of sale by the wife to her husband of her separate estate, but the purpose of the act is to protect the wife in every transaction between her husband and herself which involves a transfer of her separate estate to him. If there is danger to the interest of the wife in conveying her separate-estate to her husband, the same danger exists to the wife in buying property from the husband and transferring in payment her separate estate. Every transaction, therefore, between
In the present case the cashier of the plaintiff testified that the husband told him, when he tendered his wife’s note to the bank as collateral security, that the consideration of said note to his wife was “mules that he had purchased for her, and paid for, for her, that she was using on her farm.” If this statement was the truth, the note was valid in the hands of the husband, and was binding on the wife, without any order or approval by the court. There being transactions, therefore, between husband and wife where her note payable to him would be entirely valid without the approval of the court, a'negotiable note by the wife to the husband would not import any invalidity, and one who took such note