169 Ga. 784 | Ga. | 1930
Mrs. Emma J. Saxon filed her petition against the National City Bank of Borne, to enjoin a sale of certain described property under power conferred in a deed given by her to the bank, to secure the loan of $1500, on the ground that the note and security deed were made to secure a debt of her husband, which was done under the direction of the bank and with full knowledge on its part that she was signing only as security for her husband, and not for' any indebtedness of her own. She also prayed for cancellation of the security deed as a cloud on her title. The pleadings and the evidence show that the husband of the plaintiff, J. S. Saxon, was a cotton-buyer. He asked the bank for the loan of $10,000 with which to carry on his business, and the bank’s officers stated to him that if he would put up $1500 on deposit with the bank they would allow him to draw to the extent of $10,000, or lend him the $10,000. He stated to them that he did not have the money, but that his wife had some property. The bank offered to lend the money if Saxon would get his wife to sign a note for $1500 and give a security deed to certain property to secure the loan. . He took the note and deed to his wife for her signature. She signed the note and deed and gave her husband a check for $1500; whereupon the bank deposited to his credit $11,500. The bank avers that the loan of the money was an original transaction with Mrs. Saxon, not with her as surety for her husband; that he did not owe the bank any money at the time; and that the loan was made on the credit of the plaintiff alone. The bank prayed for judgment for the amount of the note with interest, and that a special lien be set up against the property described in the security deed. The judge directed a verdict for the defendant bank, and the plaintiff excepted, contending that the evidence demanded a submission of the issue to a jury. . .
The petition attacks the deed made by the plaintiff to the- bank,
As we view this case the controlling question presented for decision is whether Mrs. Saxon signed the note and security deed as security for her husband’s debt. Under the uncontradicted evidence it appears that at the time the note and deed were executed and delivered no indebtedness existed from Mr. Saxon to the National City Bank of Borne, or any other person. It therefore appears to us that it can not be said that this loan was made to the wife in the nature of a security for a debt of the husband due either to the bank or to any one else. It appears that the husband had placed to his checking account in, the bank the $10,000 which he had borrowed from the bank, and also the $1500 which the wife had borrowed upon her note and deed, which amount she had turned over to her husband,' arid that there was to the credit of Mr. Saxon in the bank the sum of $11,500. In these circumstances it can not be said that the wife was standing her husband’s security for the $1500, or that the bank was taking her property, or the proceeds thereof, for the purpose of paydng her husband’s debt; for no debt existed at the time the note and deed were executed by the wife. A case very similar in its facts to the present is that of Jordan v. Douglas Grocery Co., 27 Ga. App. 296 (108 S. E. 139), where it was said: “Eor no reason assigned at the trial did the court err, under the pleadings in this case, either in rejecting the evidence that the defendant ‘signed said note as security and that she signed said mortgage as security,’ or in ruling out the evidence that ‘she did not purchase the store from plaintiff and never ordered any goods from them and did not owe them anything.’ The mortgage itself shows that the note was given for the purchase of a certain stock of goods. The only person who signed the note and mortgage was the defendant. It is not claimed that any other person was to have signed these papers and by mistake or fraud Avas prevented from doing so, and the petition contained no allegation of mistake or fraud AArhatever. Section 3538 of the Civil Code of 1910 says: ‘The contract of suretyship is that whereby one obligates himself to pay the debt of another in consideration of credit or indulgence, or other benefit given to his principal, the principal remaining bound therefor.’ The very essence of a contract of suretyship is that there should be some one liable as
In 32 Cyc. 23, it is said: “It is essential that there be a principal, and if a person undertake that another will pay or perform, there not being any legal liability on the part of such person to pay or perform, the promisor is the principal and not a surety.” The evidence in the instant case discloses that the bank declined to extend the credit of $1500 to the husband, but did extend it directly to his wife, and this fact was known to both the husband and the bank; and under the uncontradicted evidence, if the present note and deed should be declared void on the ground that it was merely as a security for the debt of plaintiff’s husband, the bank could not hold the husband liable therefor, for he was no party to the contract as principal or otherwise. It has been held repeatedly by this court that a wife can borrow money for the express purpose of giving it to her husband. Thus, in Johnson v. Leffler Co., 122 Ga. 670 (50 S. E. 488), this corrrt held: “While a wife can not bind her separate estate by any contract of suretyship, nor by any assumption of the debts of her husband, nor sell her property in extinguish-anent of his indebtedness, she may nevertheless, upon her own responsibility and voluntarily, enter into a contract for borrowing money and give her note therefor and a mortgage upon her property to secure its payment; and such a contract will be binding on her though the party with whom she contracts may know she intends to use the borrowed money for her husband’s benefit.”
The cases cited by the plaintiff are different in their facts from the case at bar. Thus in Summers v. Lee, 10 Ga. App. 441 (73 S. E. 602), it appears that the husband was not only indebted to the bank making the loan, but to other persons, arid that the attack was made upon the deed, not upon the ground of suretyship, but upon the ground that it was a collusive scheme to subject the wife's property to the payment of her husband's debt. This question is not involved in the instant case, for the reason already pointed out, that at the time of the making of the note and deed by Mrs. Saxon the husband was not indebted to the bank so far as the record discloses, or to any other person. In Lee v. Johnson, 162 Ga. 560 (134 S. E. 166), the indebtedness of the husband existed prior to the making of the deed by the wife which was attacked in that case. In Parrott v. Smith, 135 Ga. 329 (69 S. E. 552), a debt oE the husband was involved, and the attack was made on the ground that the money of the wife had been used in payment of the debt of the husband. The same was true in Central Bank & Trust Cor. v. Almand, 135 Ga. 231 (69 S. E. 111), where an indebtedness existed between the husband, or the corporation in which he was interested, and the bank, at the time of the conveyance by the wife, and the conveyance was made for the specific purpose of securing certain prior indebtedness of the husband. So in Cross v. Cordell, 149 Ga. 383 (100 S. E. 365), the husband at the time of making the deed by his wife was indebted to the defendant, and the deeds were attacked on the ground that they were made by the wife in payment of the indebtedness of her husband, and that therefore they were void. In Freeman v. Mutual Building & Loan Asso., 90 Ga. 190 (15 S. E. 758), the lender of the money to a married woman knew that she borrowed it to pay a debt of her husband, and aided him in a scheme for that purpose. The same thing applies to the cases of Bank of Eufaula v. Johnson, 146 Ga. 791, 793 (92 S. E. 631); Jackson v. Reeves, 156 Ga. 802 (120 S. E. 541); Blackburn v. Lee, 137 Ga. 265 (73 S. E. 1); Ginsberg v.
From what has been said, and from the authorities cited, we are of the opinion that no legal verdict other than that directed by the court could have been rendered. Under the pleadings and evidence the directed verdict was demanded.
Judgment affirmed.