Wingfield v. Rhea

73 Ga. 477 | Ga. | 1884

Jackson, Chief Justice.

. The questions made in this record are, whether equity will enforce a judgment at law against a married woman, rendered on a promissory note of herself and husband, out of a trust estate for her use during life, and remainder to her children; and whether she is concluded by the judgment at law on the note from the defence that the consideration of the note was the husband’s, and that she was his surety.

1. Both questions have been answered by adjudications of this court, — the first, in the case of Robert, trustee, et al. vs. N. & A. F. Tift, 60 Ga., 566, and 63 Id., 250, Kupferman vs. McGehee, trustee, et al., where it was held that the income of the trust estate of the life tenant could be reached in equity to pay the debt of the life tenant. In the case at bar, the corpus of the trust estate is some twelve thousand dollars and the income six hundred, while the judgment is less than two hundred. In justice and equity, it ought to be paid by the income of the wife’s trust estate for life, if it be not her husband’s but her own debt, and the principles ruled in the cases cited cover and control the point.

2. Can she set up that the debt is not hers but her husband’s, after judgment at law that it is hers? This point was virtually settled in the case of Lewis vs. Gunn, 63 Ga., 542, where it was held that, having had her day in court, and having failed to make defence, the judgment concludes her. And such must be the law. A married woman, having a separate estate, and making her note, when sued thereon, must defend like other people then, or she loses her defence, unless by fraud, or want of service, or other equitable ground, the judgment itself was wrongfully obtained. Any defence she could have made on the trial must be made. 63 Ga., 542; 60 Id., 189.

See also Mashburn vs. Gouge, 61 Ga., 512, where the promissory note was joint by husband and wife, as in the case at bar, and the judgment on it at law was held to con-elude the wife from afterwards setting up the defence that she was surety for her husband, which decides the identical point under consideration here.

Judgment affirmed.