Jones v. Rice

92 Ga. 236 | Ga. | 1893

Bleckley, Chief Justice.

1. Nothing appearing to the contrary, we may presume that the common law prevails in the State of North Carolina unaltered by statute as to the rights and powers of a married woman to charge her separate estate. The common law disabled her to charge herself personally by any contract for the payment of money. No judgment against her could be recovered on such a contract; but she had capacity to charge her separate estate by her contract, whether that estate received the benefit or consideration of the debt with which she incumbered it, or not. In order to charge it for anything which was not directly beneficial to it, it was necessary that she should manifest her intention so to do, and mortgaging or pledging her separate estate for the payment of the debt of another was a sufficient manifestation of such intention. That law did not disable her from binding her separate estate for the payment of her husband’s debt. Prior to the adoption of the code she could in this State, if unrestrained by the instrument creating her separate estate, secure her husband’s debt in this manner. Carmichael v. Walters, 33 Ga. 316. It was the code that attached this new disability to her former disabilities. No similar legislation by the State of North Carolina was proved on the trial of this case. We take it, therefore, that in that State a mortgage by a married woman to secure the debt of her husband would be valid and enforceable. In this case the jury could find from the evidence that Mrs. Jones had incumbered her land situate in North Carolina with such a mortgage, and, desiring to exchange the same for other land situate in this State, she procured Rice, the plaintiff below, to advance a promissory note which he held upon McCloud, the owner of the incumbrance, for that purpose, she giving Rice her promissory note for the amount so advanced; that she afterwards removed to this State and here executed other promissory notes in renewal of the first. If this was so, these renewal notes were not given for the debt of her husband, the real consideration of them being the benefit which she derived from the advance made by Rice to disincumber her land in North Carolina. This consideration moved to her and not to her husband. Of course, if it was lawful in North Carolina for her to incumber her property as security for her husband’s debt, it was lawful for her to pay that debt, and if her separate estate was relieved from the incumbrance by the money or property which Rice advanced in North Carolina, that estate was benefited by the advance, and though the original note given in North Carolina might not have bound Mrs. Jones personally, yet the notes given here in renewal of that would bind her personally, for m the present state of our law a married woman may bind herself personally by promissory notes the consideration of which is a benefit to herself or to her separate estate. These notes were executed in November, 1890, and are the basis of the present action. The request on which Rice acted in advancing the McCloud note upon the mortgage was made by Jones and not directly by Mrs. Jones; but the jury could infer that her husband preferred the request for her interest and at her instance, inasmuch as she shortly thereafter gave to Rice her promissory note for the amount, and in that note, as Rice testified, bound the Georgia land for its payment, and agreed that if this mode of binding it was not sufficient, she would give a mortgage or any other kind of paper to accomplish the purpose. Rice-parted with the McCloud note by surrendering it to McCloud according to the arrangement; and though it is contended that the amount of that note was not in fact deducted from McCloud’s claim against Jones, but that that claim with others embraced in the incumbrance was paid off' chiefly by another Jones, the brother of Mrs. Jones’s husband, yet there are circumstances from which the jury might have inferred the contrary. And inasmuch as Rice advanced the McCloud note as he was requested to do, and Mrs. Jones recognized this advancement by giving her note for the amount, the jury might have concluded that it was her business to see to the application of the McCloud note, and not the business of Rice. Moreover they could conclude, from her executing, after coming to Georgia, the notes in suit in renewal of her first note, that this was an admission on.her part that she had obtained the benefit of Rice’s advance. Some of the instructions complained of, in the- charge of the court, are not accurate, but they were not calculated to mislead the jury as against Mrs. Jones on the real merits of the case. One or two of them may have been misleading as against Rice, the plaintiff.

2. The evidence was in some respects directly conflicting, and the verdict ought to have depended on whether the jury gave full credit to the testimony of Rice, the plaintiff. Doubtless they did so, for they found in his favor. Taking his testimony as true, and looking to the circumstances tending to support his theory of the case, the verdict was correct, and there was no error in denying a new trial.

Judgment affirmed.