143 Ga. 156 | Ga. | 1915
Eemer L. Denmark as administrator on the estate of James H. Odom, Joseph H. Odom, and A. G. Williamson were plaintiffs in a case seeking the foreclosure of a mortgage executed by Sallie C. Sharpe for the purpose of securing her promissory note for $4,425.26, payable to the order of James H. Odom, Joseph H. Odom,'and A. G. Williamson. The defendant admitted the execution of the note and mortgage, and defended on the ground.that they had been fully paid by a conveyance of certain land to one of the plaintiffs, James H. Odom, by Miss Sallie Odom, her aunt. The suit was further defended on the ground that the note and mortgage were given to pay the debt of her husband, who was tax-collector of Toombs county, and who, according to an audit of his books, had been found to be short in his accounts and indebted to the county in a certain sum. The plaintiffs were sureties on his bond as tax-collector; and the consideration of the mortgage was alleged to be for money borrowed of one of the plaintiffs for the purpose of paying the amount claimed to be due by the tax-collector and his sureties on the bond. On the trial of the issue thus raised by the pleadings, and after evidence and charge of the court, the jury returned .a verdict for the plaintiffs. The defendant, being dissatisfied with the verdict, made a motion for a new trial, which was overruled, and she excepted.
The motion for a new trial complains of the charge of the court, and of failure to charge, and that the verdict is contrary to the law and the evidence. The plaintiffs contend, that Mrs. Sharpe voluntarily borrowed the money from James H. Odom, Joseph H. Odom, and A. G. Williamson, for the purpose of paying it to Toombs
“One who has entered into contract with a party as indorser, guarantor, or surety,” is a creditor. 11 Cyc. 1195, and cases cited. Banks v. McCandless, 119 Ga. 793 (47 S. E. 332). National Bank of Tifton v. Smith, 142 Ga. 663 (83 S. E. 526), was an action by the bank against Mrs. Smith to recover the amount due on a note signed by her, payable to the order of the James Manufacturing Company, and indorsed by that company and W. E. James. The defendant pleaded, that the note was given to the company without consideration, and was made by her solely as an accommodation to W. E. James and the company, in order that the latter might secure the indorsement of E. A. Buck on notes given to the Commercial National Bank and the American National Bank of Macon; that she was a married woman, and E. A. Buck had full notice of that fact and of all the circumstances attending the execution of the note and the purposes for which it was made; that in substance her contract was one of suretyship, and being a married woman she was not liable thereon, by reason of the statute forbidding a married woman to bind her separate estate by a contract of suretyship. The jury found for Mrs. Smith. It was held: “One who contracts with the payee of an accommodation note, executed by a married woman, that on the faith of its security he will indorse a-note for the payee for discount at a bank, and receives her note with full knowledge of all the facts, enters into an 'arrangement to make
From what has been said, it follows that the court erred in refusing a new trial.
Judgment reversed.