55 Ga. App. 534 | Ga. Ct. App. | 1937
Tire Interstate Life and Accident Company filed suit against E. D. Herron and Eva G. Herron, husband and wife, on a promissory note apparently signed by both defendants as makers, and secured by a deed to certain realty, signed by both defendants, which the plaintiff alleged was given for money borrowed by the defendants. The plaintiff prayed for a judgment
On January 23, 1919, J. EL Adams executed a deed to part of lot of land 61, 9th district and 4th section, Catoosa County, Georgia (the home place involved in this litigation), to E. D. Herron and his wife, Eva G. Herron. On August 28, 1922, E. D. Herron executed to his wife, Eva G. Herron, a deed to his interest in this land, and the title was still vested in her on June 16, 1927, when E. D. Herron and Eva G. Herron, executed a security deed conveying this land to the Hamilton Trust and Savings Bank of Chattanooga, Tennessee, to secure a note of that date, payable to the order of the Hamilton Trust and Savings Bank, in the principal sum of $17,000, due June 16, 1930. Hpon the delivery of the deed and the note the Hamilton Trust and Savings Bank delivered to the makers thereof its check for $16,490 (the net proceeds of the loan), payable to the order of E. D. and Eva G. Herron. This check was indorsed by E. D. and Eva G. Herron. Mr. Herron admits his indorsement. Neither Mr. nor Mrs. Herron denies that she indorsed it personally, both saying they do not remember. Mrs. Herron says it might be her personal indorsement, she does not remember; while he says he might have indorsed for her, but if he did he had authority. Hpon Mr. Herron’s instruction it was deposited to the credit of the account of E. D. Herron in the Hamilton National Bank (the Hamilton Trust and Savings Bank was a subsidiary of the Hamilton National Bank). The account to the credit of which this check was deposited was maintained in the Hamilton National Bank and equally subject to the check of either E. D. Herron or Eva G. Herron. On or about June 22, 1927, the Hamilton Trust and Savings Bank sold this Herron loan to the Interstate Life and Accident Company,
The fact that the Hamilton National Bank, the Hamilton Trust and Savings Bank, and the Interstate Life and Accident Company were variously involved in the transaction is of no legal consequence for the reason that E. L. Underwood was the vice-president of each of these companies and transacted all the business and was the agent of the three principals. The knowledge of the dual agent is imputable to his principals. Carlton v. Moultrie Banking Co., 170 Ga. 185 (3) (152 S. E. 215). If we consider most favorably to the plaintiff the evidence with reference to the first loan, it appears that the loan was made to the husband and the wife jointly, and a security deed to their home place was executed as security for the loan; that this security deed was signed jointly by both husband and wife; that the check drawn on the Hamilton Savings and Trust Company was made jointly to both husband and wife; that'the check was indorsed by both the husband and the wife and deposited in the Hamilton National Bank to the credit of the husband, with the right of either the husband or the wife to withdraw by check any or all of the funds in said account. Does the mere fact that the check was so indorsed, and that the husband so deposited it, require the court to say as a matter of law that the entire consideration passed only to the hus
While a married woman may contract, she can not bind her separate estate by any contract of suretyship; and if by any arrangement or scheme a loan is made to the husband, and the wife’s part in the transaction is directly or indirectly to secure the loan made, not to her, but to her husband, by hypothecating her land, the loan is not collectible from her. “The spirit and purpose of the statute is to prevent the appropriation of the wife’s property to the payment of a secondary or collateral liability.” Gross v. Whitely, 128 Ga. 79, 82 (57 S. E. 94). “Where a joint note is executed by a husband and wife for a consideration of money or goods afterwards to be advanced or furnished by the payee, in the absence of a partnership undertaking between husband and wife, ‘the wife is bound only to the extent of so much of the consideration as she afterwards receives.’” Daniel v.. G. Ober & Sons Co., supra. And if the plaintiff can not show clearly what amount the wife received by virtue of the joint note, she is not liable. Jones v. Harrell, 110 Ga. 373 (2) (35 S. E. 690). Where the wife executes a deed conveying her property for the purpose of extinguishing her husband’s debts, in pursuance of a plan or scheme participated in by the grantee in the deed, such deed is void. If the deed was given to secure a part of the wife’s individual debts, and the remainder to secure the husband’s individual debts, the deed itself can not be upheld, for it is indivisible and void, because given to secure the debt of the husband; and being an entire individual transaction, it is impossible to separate that which is legal from that which is illegal. Bond v. Sullivan, 133 Ga. 160 (2) (65 S. E. 376, 134 Am. St. R. 199); Carlton v. Moultrie Banking Company, supra. Where the husband and the wife sign a note jointly as joint principals, and there is nothing in the note to show that one is surety for the other, the presump
On the face of this contract it was a joint debt of both husband and wife, and both the note and the security deed were their papers. Prima facie it was a joint contract that the wife could legally make. Under proper pleadings, if the contract was introduced in evidence, then the wife could go forward with her proof and show that the husband individually received a part of the consideration (money), and perhaps that she individually received an undetermined or indefinite part of the consideration (money). Then the plaintiff could go forward with its proof and show the amount the wife received; but in order to recover against the wife it must clearly show what amount she received and could recover only the amount so shown; or the plaintiff could go forward with its proof and show that the husband and the wife received the consideration without division. Of course the husband, when properly constituted an agent to represent either his wife or the partnership composed of himself and his wife, could receive the money in behalf of his principals just as though the principals themselves had received it. The wife in effect pleaded that the entire consideration went only to her husband and passed only to him, and that he was the real primary debtor, and that she was in the position of a surety, and that the payee had knowledge of
Judgment affirmed.