McNeil v. Davis & Son

| Ala. | Nov 15, 1894

COLEMAN, J.

The appellees brought the statutory action of ejectment against Pauline McNeil, to recover a certain lot or parcel of land, which was claimed as her separate estate. The plaintiffs’ title was that of a transferee of a mortgage of the property sued for, executed by Pauline McNeil and her husband to one Purcell, the title to which, by proper conveyance, was transferred by Purcell to plaintiffs. The defendants pleaded the general issue and two other special pleas, and the case was tried upon issue joined. The errors assigned are based upon the instructions given for plaintiff and the refusal of the court to instruct the jury as requested by the defendants.

We will state the facts as contended for by the plaintiffs. One Brantley, with McNeil & Co. and Purcell as sureties, executed a promissory note to plaintiffs to procure a loan of money to Brantley. McNeil, of the firm of McNeil & Co., was the husband of Paúline McNeil. To induce Purcell to sign the note as surety, Pauline McNeil and her husband, executed the mortgage to him, to indemnify him (Purcell) against all loss or damage by reason of his said suretyship on the note to plaintiffs. The legal question involved is whether the debt to plaintiffs, for which the note of Brantley, McNeil & Co. and Purcell was given, is the debt of the husband'McNeil within the influence of section 2349 of the Cod'e which provides that ‘-'the wife shall not, directly or indirectly, become the surety for the husband.” Section 2604 of the Code, declares: “When two or more persons are jointly bound by judgment, covenant, bond or promise in writing of any description whatever, the obligation or promise is in law several as well as joint.” Under many decisions of this State, McNeil, the husband, could have been separately sued to judgment on this obligation; and made to pay the debt. In law the promise of McNeil & Co. to pay, was the several obligation of each member of the firm of McNeil & Co., who were under no legal contractual disabilities. If the mortgage is valid, upon the payment of the debt by Purcell he would be authorized to foreclose it for his re-imbursement or indemnity, and thus the wife’s property would be applied to the payment of the joint and several debt of her husband and Purcell, and McNeil, the co-surety and husband, would be relieved from contribution to his co-surety Purcell. A. pledge or mortgage by the wife of her property to one, who is surety for her husband, or co-surety with him, on a debt for which he may be held liable as a principal, is as much within the influence of the statute (§ 2349, supra) as if she had signed the obligation herself, or directly pledged the property for the security of the debt, for which her husband is liable. We are of opinion that the mortgage to Purcell leads to this result, and contravenes the provision of the statute, which declares that ‘ ‘the wife shall not, directly or indirectly, become the surety for the husband.”

The ruling of the court was contrary to these principles, and in so doing the court erred.

Reversed and remanded.