Hanchey v. Powell , 171 Ala. 597 ( 1911 )

ANDERSON, J.

Section 4497 of the. Code of 1907. expressly provides that “the wife shall not, directly or indirectly, become the surety for the husband.” . It is needless to. consider the technical definitions of the word “surety,” as our court has repeatedly applied this statute to facts similar to the transaction in question, and has in effect held that if the wife gives a mortgage to secure a debt contracted by the husband, and not for her as her agent, and for which she was not originally liable in law or equity, as distinguished from a mere moral obligation growing out of the fact that she or her estate had been benefited by the money lent the' husband, the said mortgage was invalid, and would be canceled at her instance. The test being whether or not she was originally liable in law or equity for the debt, and not whether or not she was benefited by same, if the mortgage is given to secure a debt for which the husband was alone liable, it fails within the prohibition of said section- 4497.—Richardson v. Stephens, 122 Ala. 301, 25 South. 39, also reported in 114 Ala. 238, 21 South. 949; Wadsworth v. Hodge, 88 Ala. 506, 7 South. 194; Hawkins Lumber Co. v. Brown, 100 Ala. 217, 14 South. 110; Horton v. Hill, 138 Ala. 625, 36 South. 465; Thompson v. Hudgins, 116 Ala. 93, 22 South. 632. The testimony of the respondent shows that the lumber was sold to the husband, and while he knew the wife owned the land, and it was to- be used for her benefit, he looked only to the husband for the payment of same. He did not sell it to the wife, or to the husband as her agent, but to the husband individually, who- was to pay the debt with money he was going to get from Babe Powell, and the wife was not looked to or considered as complainant’s debtor until after Babe Powell failed to supply the money and the mortgage was given. The wife was not originally or primarily liable for the debt,. and the giving of the mortgage by her was but securing a debt of her husband, and she was a mere volunteer.

There is no merit in the contention that the mortgage should stand as security for the cost of insurance taken out by the respondent. If the complainant agreed to this, she would no doubt be liable for same; but this-debt is not embraced in the mortgage by a future advance clause or otherwise, as the only debt secured by the mortgage was the one expressed in the face of same, which was the lumber account, and the mortgage cannot be changed or extended by parol, so as to include debts not covered by same.

The decree of the chancery court is affirmed.

Affirmed.

Simpson, McClellan, and Mayfield, JJ., concur.