Gross v. Whitely , 128 Ga. 79 ( 1907 )

Evans, J.

(After stating the foregoing facts.)

1. In the woman’s emancipation act of 1866 there appears a recognition of the husband’s influence over the wife, and the necessity of protecting the wife’s right to contract and to own property, against his persuasion or the natural tendency of a wife to sacrifice her separate estate to save her husband from financial disaster. ' While the wife is given the right to contract as a feme sole, and to own property, yet she can not bind her separate estate by any' contract of suretyship, nor by any assumption of the debts of her husband; and any sale of her separate estate made to a creditor of her husband in extinguishment of his debts shall be absolutely void. Civil Code, §2488. It is also declared by statute that the'propcrty of the wife shall not be liable for the payment of any debt, default or contract of the husband. Civil Code, §2474. It is not open to dispute that these code sections absolutely deny the liability of the wife on a note executed by her as surety for a principal who also signs the note. In this kind of a transaction, the wife attempts to bind her separate estate by indirection. By signing the note as surety she assumes a liability which, but for the^ statute, could be reduced to judgment, and its payment enforced against her separate estate by execution: If the wife can not bind her separate estate generally by entering into a contract of suretyship, surely she can not bind a specific portion of her separate property by hyj>othecating it to pay another’s debt. The case of Klink v. Boland, 72 Ga. 485, holds, that one can not take property belonging to the wife as security for a credit sale made to the husband. If the debt is the husband’s the wife can not assume its payment, either by promising to pay the debt as a surety, or by pledging her propertjr to pay it. It is not the form of suretyship, nor whether the liability as surety is general, or only limited to the value of the pledged separate estate, which the law condemns. The spirit and purpose of the statute is to prevent the appropriation of the wife’s property to the payment of a secondary or collateral liability.

The wife may borrow money and give it to her husband, although the lender (he being no party to any arrangement between the husband and wife for procuring the money) knows that the husband is to have the use of the same.' White v. Stocker, 85 Ga. 200; McCrary v. Grandy, 92 Ga. 319; Chastain v. Peak, 111 Ga. 889; Johnson v. Leffler Co., 122 Ga. 670. Or she may sell her property for the sole purpose of raising money with which to pay her husband’s debt, the purchaser not being a creditor of the husband, and having nothing to do with any arrangement between the husband and wife looking to the making of such sale. Nelms v. Keller, 103 Ga. 745; National Bank v. Carlton, 96 Ga. 469. The reasoning on which these cases rest is that a .married woman may sell or pledge her property so long as the- transaction is not part of a scheme, participated in by the other party, the intent of which is to apply the wife’s money to the discharge of the husband’s debt. If she borrows the money on her own responsibility and for herself, the law permits her to give it to the husband. Cain v. Ligon, 71 Ga. 692. In all the cases where the wife has been held liable on her contract, her liability was primary, and not secondary. Let us look to the original plea and appty this rule of a married woman’s liability to the facts there pleaded. The allegation that the defendant signed the deed without reading it, and believing the consideration to be one thousand dollars instead of two thousand dollars, as expressed in the deed, does not aid the defense, because she does not aver that the grantee practiced any fraud or imposition to prevent her from reading the deed. The plea avers that the defendant is a married woman, and that her husband applied to Eeynolds for a loan of one thousand dollars, and Eeynolds consented to make the loan to her husband if she would secure the loan by a deed to her land. She consented to this arrangement, Eeynolds lending her husband one thousand dollars upon the faith of her deed to him, to secure the debt. The loan was not made to the wife, but to the husband. Her part in the transaction was to secure the loan about to be made, not to her, but to her husband, by hypothecating her land. She was to receive no personal benefit from the loan, but her property was to become liable to pay it in the event of her husband’s default. We think the deed, under these circumstances, is void. The plaintiff claims under Eeynolds, and as the plea alleges, he took with notice of the invalidity of Beynold’s title, his title is no better, than the title of Eeynolds. We think the court erred in striking the plea.

2. The amendment offered and rejected was not purely precatory in character, but set up new matter of defense, notice of which was not given in the original answer; and as the defendant failed to swear, in the affidavit attached thereto, that such new matter was not omitted from the original answer for the purpose of delay, the court did not err in refusing to allow the amendment. Beacham v. Wrightsville & Tennille R. Co., 125 Ga. 362.

Judgment reversed.

Fish, G. J., absent. The other Justices concur.