127 Ky. 424 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
Appellee, Bank of Russellville, sued the appellant, Moss E. Hart, and her husband, S. B. Hart, in the court below upon two notes; one of $150, bearing date November 29, 1905, due 120 days after date, and the other $250, bearing date December 26, 1905, and due 90 days thereafter. It is admitted that these two notes were renewals of what was left of a matured note of $500 which had previously been executed to the bank by the same parties, and upon which S. B. Hart had paid $100. The appellant, Moss E. Hart, by separate answer, which was later amended, interposed, in substance, the defense that she signed the two notes in question and the original note of $500 as the surety of S. B. Hart, who was then and is now her husband; that they were executed for money borrowed by him of appellee, no part of which was received by her; and that by reason of her coverture and suretyship no liability was incurred by her in placing her signature to the notes. The affirmative matter of the answer as amended was controverted by reply, thereby completing the issues as to the question of appellant’s liability upon the notes. There was, however, yet another matter involved in the litigation which seems to have been withdrawn by the parties, or settled. By agreement of parties, a jury was waived, and upon submission of the law and facts to the court judgment was rendered against the appellant, Moss E. Hart, in appellee’s favor, for the amounts respectively of the notes in suit. Appellant applied for and was refused a new trial. Hence this appeal.
Ordinarily, it will be presumed that the name appearing first on a note as an obligor is that of the principal debtor, but this presumption may be overthrown by the facts of the case, or the conduct of the parties themselves, and it is admissible for one, whose name appears first, or above that of another on a note, to prove that his relation to the obligation is nevertheless that of a surety, and this he may do by parol testimony. Lewis v. Harbin, 5 B. Mon. 564; Emmons v. Overton, 18 B. Mon. 648; Bank v. Gaines, 87 Ky. 601, 9 S. W. 396, 10 Ky. Law Rep. 451; Skinner v. Lynn, 51 S. W. 167, 21 Ky. Law Rep. 185. Section 2127, Ky. St. 1903, declares that the wife’s estate shall not be liable “upon a contract made after marriage to answer for the debt, default or misdoing of another, her husband included, unless such estate shall have been set apart for the purpose by deed of mortgage or other conveyance. * * *” As said in Crumbaugh v. Postell, 49 S. W. 334, 20 Ky. Law Rep. 1366, in respect- to an attempt to-hold the mfe liable on certain notes which she had signed with her
The facts connected with the transaction were, in brief that: About October 1,1904,. S. B. Hart, desiring .to borrow $500, prepared a note for that amount, to which he procured his wife’s signature above his own, .and this note he forwarded by mail with a letter to the appellee, Bank of Russellville, requesting that it be discounted. It was promptly discounted by the bank, and its proceeds, less discount, either placed to the credit of S. B. Hart upon the books of the bank, or held subject to his order and applied to the payment of a draft drawn by him individually upon appellee through the Kentucky National Bank of Louisville. The inquiry naturally arises: Why did appellee hold the proceeds of ■ the' notes subject to S. B. Hart’s order and apply them to the payment of .his individual draft, if the loan.wgs made to his wife? It cannot be claimed that it was because S. B. Hart was his wife’s agent in negotiating the loan, for hé did not hold'himself out as such agent in applying for the loan, or make the draft as agent. The pro-needs of the draft went to the credit of S. B. Hart in the Kentucky National Bank, and the entire amount was checked out by him in payment of numerous demands owing by him individually and for none of which was the wife liable.
It is insisted for appellee that this case is controlled by that of Thompkins v. Triplett, 110 Ky. 824, 23 Ky. Law Rep. 305, 62 S. W. 1021, 96 Am. St. Rep. 472. We are unable to see the analogy. In Thompkins v. Triplett, the husband of the appellee applied' to Thompkins for a loan, which was refused, but which Thompkins said he would make to Mrs. Triplett. Triplett then had his wife to sign a note first and delivered this to Thompkins, who thereupon made the loan to her. Thompkins testified, and was not contradicted ,that he gave credit to Mrs. Triplett alone. These facts, in the opinion of this court,
The statute controlling this case (section 2127) was enacted to protect the property of a married woman from the dangerous liability of a surety and to restrict her liability on such debt to the amount of her property actually set aside by mortgage or other writing for that purpose. If, however, the statute can be evaded by merely making her the apparent principal in an obligation of which another, whose name also appears to it, is the real beneficiary, its force will be in great measure abrogated, as a woman who is willing to become surety for another would equally consent to lend her name as an apparent principal. All the husband, who desires to use his wife’s estate to secure credit, would have to do would
Prom the facts presented by the record before us, we are constrained to hold that the appellant, Moss E. Hart, was not the principal, but only a surety, in the notes in controversy, and the $500 note of which they are renewals. If right in this conclusion, it follows that the learned judge of the circuit court erred in the judgment rendered.
Wherefore the judgment is reversed, and cause remanded for a new trial and such further proceedings as may be consistent with the opinion.