Taylor v. American Freehold Land Mortgage Co. of London Ltd.

106 Ga. 238 | Ga. | 1898

Cobb, J.

1. It appears from the evidence that E. Taylor jwned certain lands, that he gave a mortgage on the same to Thomas, and that after the execution of this mortgage Taylor conveyed the lands to his wife. All of the money borrowed by Mrs. Taylor and which was the consideration of the note sued on, except what was used to pay for commissions and insurance, was applied to the payment of the Thomas mortgage. Mrs. Taylor claims in her plea that this was such an assumption of the debt of her husband as to render her promise void. That such a transaction is valid and binding upon the wife w;as held in the case of Daniel v. Royce, 96 Ga. 566. In that case Justice Lumpkin says: “A note given by a married woman, the consideration of which, pure and simple, is a debt due by her husband, is certainly void. But it by ho means follows that she may not bind herself by a note given by her for a loan of money with which to pay off an encumbrance on her own property, although this encumbrance may have been created by the husband himself before she became the owner. In such a case, it makes no difference at all that the lender knew the purpose for which the money was borrowed. The policy of the law is to forbid the wife from making herself in any manner liable for the husband’s debt as such; but there is no good reason why a wife, when she becomes the owner of property formerly belonging to the husband, may not use her own means, or borrow money, for the purpose of relieving the property of a lien of the existence of which she fully knew when she accepted the husband’s conveyance. In such a case, she does not discharge the lien because it represents the husband’s debt, and the consideration which moves her is not a purpose to relieve him from the indebtedness, but to free her own property from an existing encumbrance.” See also Strickland v. Gray, 98 Ga. 667.

2. Mrs. Taylor was a resident of Georgia, and the note sued on was signed in this State. It was payable at the office of the Corbin Banking Company in New York City, to J. K. O. Sherwood or order, and indorsed by him, without recourse, to the plaintiff. The note bears eight per cent, interest. To secure this note Mrs. Taylor executed in this State a warranty-deed of even date with the same, to certain lands in this State, the deed reciting that it was intended to conform to certain sections of the code of Georgia in reference to security-deeds. It further appeared that Mrs. Taylor had made a written application for the loan, executing the application in Georgia and offering therein as security real estate situated in this State, expecting a lender to be found by her agent elsewhere; that afterwards the application was accepted in New York by a person whom it may be presumed was a resident of that State; and that she executed the note and the deed above referred to as security, the note and the deed, after the, latter was recorded, being delivered in New York by her agent to whom it is clearly inferable from the evidence the money was there delivered. An examination of the facts as contained in this record brings the case clearly within the rulings made by this court in its former decisions, and the question whether under such a state of facts the contracts are to be treated as Georgia contracts must be considered •■as no longer an open one in this State. New Eng. Mortgage Company v. McLaughlin, 87 Ga. 1; Jackson v. American Mortgage Company, 88 Ga. 756; Stansell v. Georgia Loan & Trust Co., 96 Ga. 227; Underwood v. American Mortgage Company, 97 Ga. 239. The evidence disclosing nothing from which it could fee inferred that there was any purpose or attempt to violate or ■evade the usury laws of New York, the transaction will be upheld unless it is in violation of the usury laws of this State.

The evidence showed that Mrs. Taylor made application to Felder to procure a loan, agreeing in the application to pay ■certain commissions; that this application was forwarded to ithe Corbin Banking Company, a New York corporation engaged in the brokerage and banking business; that by an arrangement with Felder and the Corbin Banking Company the latter was to receive a part of the commissions; that the amount for 'which the application was made was sent by the banking company to Felder, after the commission which that company was to retain had been deducted therefrom; that the banking company sent to Felder the note, deed, and bond for titles, which were the papers necessary to complete the transaction; and that in all these papers the lender appeared to be J. K. O. Sherwood. There does not seem to be any direct evidence that Sherwood delivered the money to the Corbin Banking Company, but this is necessarily to be inferred from the circumstances. It further -appeared that Felder, with the knowledge of Mrs. Taylor, appropriated the money to the payment of the Thomas execution and ithe commission due him and for insurance on the property; that there was not enough to pay in full all of these items; and that for the purpose of procuring the additional amount necessary, a note .signed by Mrs. Tiaylor and indorsed by Felder was executed. There was no evidence that Sherwood received any part of the money retained by the Corbin Banking Company as commissions, and nothing whatever appears in the record to negative the conclusion that he had not actually parted with the full amount for which the note was given. See Hudson v. Equitable Mortgage Co., 100 Ga. 83. There is no direct evidence that the Corbin Banking Company was the agent of ■Sherwood; but even if this could be inferred, there was absolutely no evidence tending to show that he knew that the Corbin Company had retained any part of the money as commissions.. Under this state of facts there was no usury in the transaction^ Such is what we understand to be the repeated adjudications of this court. Boardman v. Taylor, 66 Ga. 638; Merck v. American, Mortgage Company, 79 Ga. 213; Hughes v. Griswold, 82. Ga. 299; Riley v. Olin, Ibid. 312; McLean v. Camak, 97 Ga. 80.

3. There was no .error in refusing to allow E. Taylor to testify that his wife was ignorant of the fact that a verdict and: judgment finding the property subject had been rendered' against her on her claim interposed in Lee Superior eourt to* the levy of the Thomas mortgage execution. This verdict, and judgment was consented to in open court by attorneys who* appeared as representing Mrs. Taylor; and while the evidence-offered tends to establish that they acted in the matter without-conferring directly with their client, there is no pretense that-the attorneys who consented to the verdict and judgment were-not duly authorized by Mrs. Taylor to represent her in the trial of the case; and this being true, it is immaterial whether she knew of what had been done in the case or not. See Civil-Code, § 4417; Webster v. Dundee Mortgage Company, 93 Ga. 279. If her attorneys exceeded their authority or she has suffered, by their negligent conduct, she has a remedy against them;; but the verdict and judgment would nevertheless be valid.

There was no error in refusing to allow E. Taylor to testify that at the time he gave Thomas the mortgage on the lands in Lee county, he told Thomas that Mrs. Taylor’s money had paid for the lands, and that he (Taylor) simply held the paper title to-the same; and that Thomas remarked: “ All right, he would risk it anyhow, as he already had a mortgage on the house and lot in Americus, which was good security for all the debt except the interest.” It was contended that this evidence was admissible,, because the plaintiff had taken a transfer of the Thomas mortgage execution, and that therefore notice to Thomas was notice to the transferee. The plaintiff is not seeking to enforce the Thomas mortgage execution, and for this reason the evidence was irrelevant and properly excluded.

This case is controlled on all points by the former decisions of this court, cited above. We have carefully read every line of' this brief of evidence; and after as thorough an investigation of the facts as it is possible to give a case, we have reached the= conclusion that if a verdict had been rendered in favor of the = defendant on any of the pleas filed by her, there would have-been absolutely no evidence to support such'a finding. Her-contentions are not directly supported by any proof, nor sustained by any legitimate inferences from any of the facts in evidence. Such being the case, we can not but hold that the circuit judge was correct in directing the jury to find as they did. Civil Code, § 5331. .

Judgment affirmed.

All the Justices concurring, except Simmons, G. J, ivho was disqualified.