19 Ga. App. 73 | Ga. Ct. App. | 1916
1. While a married woman can not bind her separate estate by any contract of suretyship (Civil Code, § 3007), yet she may extinguish the debts of her son, or cause them to be extinguished, on her own credit, as an original undertaking, with a mortgage upon her property as security for the performance of her own contract. Freeman v. Coleman, 86 Ga. 590 (12 S. E. 1064) ; Finch v. Barclay, 87 Ga. 393 (13 S. E. 566). A mortgage given by a married woman to a creditor of her son, in extinguishment of a debt of the son, is valid. Villa Rica Limber Co. v. Paratain, 92 Ga. 370 (17 S. E. 340).
2. There was sharp conflict in the evidence as to whether the married woman in this case was merely a surety for her son’s debt, or whether the mortgage note sued upon was executed by her as an original undertaking on her part to pay off her son’s indebtedness. The jury, under the charge of the court, found that she was merely a surety. In this connection the plaintiff excepted to the following charge of the court: “Where a married woman signs a note or pledge, or mortgages her property for a consideration that moves to a third person, she or her estate receiving no benefit, she will be regarded as a surety; and if she is so regarded, and the jury believes that she was a surety, she would not be bound upon the contract, and it would be the duty of the jury to find in favor of the defendant in this case.” This instruction
was incorrect, and, under the facts of the case, was practically a direction to find for the defendant. On account of this error a new trial must be granted. Judgment reversed.