Rountree v. Rentfroe
77 S.E. 23
Ga.
1913
Check Treatment
Lumpkin, J.

(After stating the foregoing facts.)

1. In giving the history of the transaction, and showing who negotiated with Eountree in respect of the loan, and for whose benefit it was made, there was no error in allowing Eentfroe, the husband, to testify that he was the one who borrowed the money from Eountree. The objection made to this evidence was that it was irrelevant, and that the question was to whom Eountree extended the credit, and who signed the notes. But the evidence was not subject to this objection.

2. In Schofield v. Jones, 85 Ga. 816 (11 S. E. 1032), it was held, that husband and wife may become joint lessees of a house in which to carry on a hotel business, contract jointly to pay the rent, and execute joint promissory notes therefor; and that, where such is not merely the outward color but the real truth of the transaction, the debt for rent is the debt of the wife as well as the husband. In the opinion Chief Justice Bleckley said: “The true test'of the real debtor or debtors is, to whom did the consideration pass? King v. Thompson, 59 Ga. 380. If it passed to one of them severally, that one alone is the debtor; but if to both jointly, then consistency requires that they should be held as joint debtors, they having united in executing a joint agreement and assuming a joint obligation to pay.” It has also been held that a married woman may voluntarily, upon her own responsibility and in good faith, borrow money for the purpose of paying a debt of her husband and give her notes therefor, and that such a contract will be binding upon her although the -lender may know, at the time the loan is made, that she is borrowing for that purpose, if he is not the husband’s creditor who is to be thus paid, and is no party to any arrangement or scheme between the husband and wife for which the borrowing of the money by her for such purpose is the outcome. Rood v. Wright, 124 Ga. 849 (53 S. E. 390).

In the present case the evidence showed, without controversjq that the husband owed a debt, and applied to his creditor for the *293loan of an additional sum in order that he might go into a commercial venture for himself; that his creditor agreed'to make the loan if the amount of the original debt and of the new loan should be included in notes signed by him, his wife, and another; that this was done upon the creditor’s suggestion and with full knowledge as to the purpose for which the loan was to be used; and that the money was received by the husband and used in his business, and nothing was received by the wife. While the creditor testified in general terms that he loaned the money to the signers of the notes, when he gave the facts of the transaction his evidence did not conflict in 'any material particular with that on behalf of the plaintiff. From the whole evidence it is plain beyond controversy that the debt was that of the husband, and that the arrangement was made at the instance of the creditor for the purpose of securing payment to him.

In Thornton v. Lemon, McMillan & Co., 114 Ga. 155 (39 S. E. 943), it was held that where a promissory note was executed ’and delivered by a married woman for the purpose of settling a pending suit against her and her husband, wherein the plaintiff alleged that both were liable, the consideration being, not the husband’s debt, but the settlement of the litigation, the note was collectible. In the present ease there was no lawsuit and no compromise. The bare statement that the creditor placed the note in the hands of an attorney, who notified the husband and wife, and they asked of the creditor an extension of time, did not make the ruling above cited applicable. The facts were more nearly like those in First National Bank of Cartersville v. Bayless, 96 Ga. 684 (23 S. E. 851), where it was held that a mortgage given by a wife upon her own property in settlement of a debt of her husband was not binding upon her, although she may have given the mortgage under the impression that the creditor holding the debt could for some reason subject the property in question to its payment, and' intended by giving the mortgage to effect a compromise of what she regarded as a doubtful claim against the property. The case of Blackburn v. Lee, 137 Ga. 265 (73 S. E. 1), was cited by counsel for the plaintiff in error. There a married woman conveyed land to her son, upon a recited consideration of a thousand dollars. Later the grantee and the husband of the creditor executed a deed to secure certain promissory notes signed by them. After a sale *294under a power contained in tbe deed, at which sale the creditor became the purchaser; as the deed authorized, the woman brought suit to recover the land, alleging that the conveyance by her to her son and the making of the security deed constituted a mere scheme to avoid the statute which prevented her from becoming surety, and that the agent of the defendant knew it. There was evidence tending tp sustain this contention. The judge directed a verdict for the defendants, and it was held that the case should have been submitted to the jury. The difference in the two cases is patent. Here the entire consideration of the deed from the wife was based upon the debt of the husband. The bare fact that the creditor stated that he thought enough had been paid to discharge the individual debt of the husband which originally existed would not save the transaction. This was not a suit by the creditor, based upon the notes, but a proceeding to cancel the deed of the wife. The exact amount of the original debt and of the payment was not shown, so as to clearly purge the deed of the consideration arising from that source. But, more broadly, we think it was plain that the entire debt was that of the husband, and that there was no error in directing a verdict in favor of the wife. No question was raised as to the propriety of making the son a party, and he testified, in effect, that he had abandoned the transaction.

Judgment affirmed.

All the Justices concur.