31 Ga. App. 95 | Ga. Ct. App. | 1923
1. Under the law of this State a married woman cannot assume the debt of her husband, and no superficial appearance will be permitted to lead the court away from the true inwardness of the transaction. Thus, if the wife did not in fact purchase and was not to receive the machinery under the contract sued on, but the whole transaction was merely a colorable scheme or device by which the wife was induced by the plaintiff to assume the previous debt of the husband, without any consideration flowing to her, she would have the right to repudiate the entire illegal and void transaction, no matter by what device its true inwardness and purpose had been concealed. Simmons v. International Harvester Co., 22 Ga. App. 358, 359 (96 S. E. 9). But where the creditor, at the time a debt is created, really intends in good faith to extend the credit to the wife, and not to the husband, and the consideration 'of the property thus purchased passes legally and morally to the wife, and where the writings then executed are such as purport to bind her for the debt as her own, then, whatever may be the private understanding between the wife and the husband, in which the creditor is not concerned and in which he has no interest, as to the disposition by the wife of the property so received by her, the writings are to be treated as embracing the true substance of the contract. Nor does it matter in such ease that the negotiations leading to the purchase are in fact all had through the husband as her agent, where the transaction appears to be the bona fide and voluntary contract of the wife. Hull v. Sullivan, 63 Ga. 126 (1, 3), 134, 136, 137; Strickland v. Gray, 98 Ga. 667 (27 S. E. 155); McDonald v. Bluthenthal, 117 Ga. 120, 122, 123 (43 S. E. 422); Johnson v. Leffler Co., 112 Ga. 670 (50 S. E. 488); Schofield v. Jones, 85 Ga. 816, 819 (11 S. E. 1032); Nelms v. Keller, 103 Ga. 745 (30 S. E. 572); Gross v. Whiteley, 128 Ga. 79, 82 (57 S. E. 94); Third Nat. Bank of Columbus v. Poe, 5 Ga. App. 113 (62 S. E. 826); Longley v. Bank of Parrott, 19 Ga. App. 701 (92 S. E. 232).
2. Where a purchase-money note thus importing a legal and valid consideration is voluntarily and, in law, knowingly signed by a wife, she is bound by a stipulation therein expressly waiving all failure of consideration, and relieving the vendor of all guaranties. Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (2) (94 S. E. 892); Case Threshing Machine Co. v. Broach, 137 Ga. 602 (1-3) (73 S. E. 1063); Pryor v. Ludden & Bates, 134 Ga. 288, 289-92 (67 S. E. 654, 28 L. R. A. (N. S.) 267); Bond v. Perrin, 145 Ga. 200 (88 S. E. 954); Washington & Lincolnton R. Co. v. Southern Iron Co., 28 Ga. App. 684, 685 (1) (112 S. E. 905); Connell v. Newkirk-George Motor Co., 28 Ga. App. 382 (111 S. E. 749); Butler v. Citizens Bank, 28 Ga. App. 184 (2) (110 S. E. 501); Brooks v. Williams Mfg. Co., 29 Ga. App. 358 (115 S. E. 150).
3. There being in the plea nothing to dispute the valid consideration imported by the written instrument, and the second ground of defense amounting to nothing more than an attempt to set up a breach of an express warranty, the court did not err in striking the plea on demurrer.
Judgment affirmed.
