85 Ga. 816 | Ga. | 1890
The action was complaint in the nature of trover for the conversion of a diamond ring. It was brought by Mrs. Jones against Schofield in May, 1889. The jury found for the plaintiff $191.68; and the defendant made a motion for a new trial, which was overruled by the court.
The plaintiff delivered the ring to the defendant, in August, 1888, as security for a debt, and the debt was unpaid when the action was brought. If the debt was one for which Mrs. Jones was bound jointly with her husband, there should have been no recovery; if otherwise, the verdict was correct. The amount of the debt was the same as that found by the jury to be the value of the ring, to wit, $191.68, and was the sum due when the ring was pledged, upon several joint promissory notes made by Mrs. Jones and her husband, for the rent of a building leased in 1886 from Schofield to be used as a hotel, and which was so used, Mrs. Jones owning
“And the said lessees further covenant and agree with said lessor to deposit with him a certain cluster diamond ring, of the value of $800.00, which said Eliza Jones, one of the lessees, hereby declares is the individual property of herself, as collateral security for all claims due said lessor for rents past due for said property herein described, to wit, the sum of $191.68, to be held by said lessor until the entire amount is paid in full, principal, interest, cost and expenses, if it becomes necessary to realize on said collateral; hereby authorizing said lessor to sell said ring, either at public or private sale, at any time after January 1st, 1889.”
There was parol evidence at the trial, pro and con, as to whether by either of the contracts of lease actually made and on which the writings were founded, Mrs. Jones was one of the lessees, or whether her husband was the sole lessee. She contended that she was not a party to the actual leasing, had no interest in the lease, took no estate by it in the premises, and was only surety for her husband for the payment of rent; and that her contract of suretyship being void, her pledge of the ring as further security was void likewise.
In Amos v. Cosby, 74 Ga. 793, land had been set apart as a homestead to the husband as the head of a family consisting of wife and minor children. The husband and wife by a joint deed conveyed it with warranty of title for the consideration of $600. The purchaser sold it with warranty to a second purchaser, and afterwards a lien superior to the homestead was enforced against it, causing a loss to the second purchaser
In Beatie v. Calhoun, 73 Ga. 269, husband and wife being jointly sued on joint notes made by them, summons of garnishment was issued, which tied up a fund belonging to the wife separately. Both joined in a bond to dissolve the garnishment, and a third person became surety for both on that bond, being induced to do so by a conveyance, made to him for his indemnity, of land which was a part of the wife’s separate estate. The plaintiff in the action failed to recover against the wife,.but recovered against the husband and the surety on the garnishment bond only. . This court held that, as the plaintiff’s debt was adjudged not to be joint against the husband and wife, but several against the husband only, the deed made by her of her separate estate to indemnify the surety upon the garnishment bond was invalid, because, as it turned out, it was security for her husband’s debt. The court said: “ The statute does not permit her to be surety or encumber her estate for her husband’s debt in a transaction in which she is sued jointly with him, any more than one-in which he is sued alone, unless the debt be her debt. If it be his debt, though she be sued for it with him, her deed to her separate property to secure it is void.”’ In Runnals v. Aycock, 78 Ga. 556, an action on a joint note was defended by the wife, and resulted in a judgment against her which was upheld. Brent v. Mount,
Several minor questions are made in the motion for a new trial, but having ruled that the court did not err in admitting parol evidence, but did err in ruling the controlling legal question in the case, we will not extend this opinion by any discussion .of these minor topics, merely saying as to them that they will be of no consequence when the case is tried correctly in the light of what we have said above. Judgment reversed.