54 Ga. App. 303 | Ga. Ct. App. | 1936
In October, 1933, the plaintiff filed suit against a husband and wife, on a promissory note signed by them in Georgia and by a third person, payable at a bank in Florida, and secured by a mortgage on real estate in Florida. On the call of the appearance docket at the December term, 1933, the judge made this entry: “By consent of the attorney for plaintiff the defendants are allowed to Feb. 1st, 1934, to file demurrers and pleas in this case.” The husband afterward died, but his executor, who was made a party, entered no defense. On March 2, 1935, the wife filed an answer, denying indebtedness and the receipt of any notice for attorney’s fees, and setting up that she signed the note as surety for her husband, and that the note; given for Florida land, was void under the laws of that State. On March 29, 1935, the judge entered an order, allowing an amendment by the wife to her answer, which order recited that “this order is allowed by consent of the attorneys in this case,” and provided that the filing and allowance be “subject to any demurrer by the plaintiff any time through May 6th, 1935.” ' On
An entry of the words “in default,” or the word “default,”
Although the note sued on was signed by the husband and the wife in Georgia, it was executed by the other signer in Florida; the payee lived in Florida; the-contract was to be performed in Florida; and the subject-matter was entirely in Florida. Therefore the judge did not err in ruling, under the pleadings and evidence, that the transaction was a Florida contract, the validity of which as to the wife was controlled by the statutes and decisions of that State. Hager v. National German-American Bank, 105 Ga. 116, 119 (31 S. E. 141); Birdseye v. Underhill, 82 Ga. 142 (7 S. E. 863, 2 L. R. A. 99, 14 Am. St. R. 142); Slaton v. Hall, 168 Ga. 710, 715 (148 S. E. 741, 73 A. L. R. 891). As was stipulated in the brief of evidence, “under the laws and constitution of the State of Florida, in force when the note sued on was made and continuously since, the note of a married woman is not, as such, enforceable against her in law or equity;” and “when a creditor accepts from a married woman a mortgage on particular property to secure the purchase-money thereof, he can not seek to subject other property of the married woman’s estate, even though the creditor be a bona fide purchaser for value of a negotiable instrument before maturity.” See Dollner v. Snow, 16 Fla. 86; Lewis v. Yale, 4 Fla. 418; Citizens Bank & Trust Co. v. Smith, 97 Fla. 601 (121 So. 900); American Bank & Trust Co. v. Rogers, 103 Fla. 791 (137 So. 884); Blood v. Huey, 97 Fla. 517 (121 So. 896); Blood v. Hunt, 97 Fla. 551 (121 So. 886); Cornell v. Ruff, 105 Fla. 504 (141 So. 535).
Exception is taken to the admission of a certified copy of an original deed, executed by the payee, at the time of the mortgage and note sued on, to the defendant husband and the comaker of the note, who resided in Florida, covering the property included in the mortgage. Preliminary proof was made that the instrument was not in the hands of any party served with process in the ease, and could not be found after diligent search among
Under the foregoing rulings, the court properly directed the verdict, and properly limited the collection of the judgment to the mortgaged property, excluding the separate property of the wife. The remaining grounds, relating to admission of alleged irrelevant testimony of the wife that she had nothing to do with the preparation of the papers in the deed and mortgage transaction in which the note sued on was given, discussed it with nobody, never went to Florida until just before the trial, knew nothing about the property described in the deed, and never owned any real estate in Florida, are without merit. In so far as part of this testimony tended, like the deed, to show that the mortgage was given for the purchase-money of the property deeded to the husband and the Florida grantee, and that the wife received no part of the money and no interest in the property, such part was relevant. The remaining part, even if irrelevant, could not have affected the result of the case or influenced the jury, and therefore its admission was harmless to the plaintiff.
Judgment affirmed.