Daniel v. Royce , 96 Ga. 566 ( 1895 )

Lumpkin, Justice.

This case presents only two questions requiring comment.

1. An action was brought by H. TL Royce, trustee, .against Mrs. Rebecca M. Daniel, upon a promissory note executed and delivered by her and made payable to his order. Upon the back of the note was an indorsement in the words copied in the head-note, and the same was signed by Royce. He, however, retained possession of the note. It was insisted that, under these facts, he was-not entitled to maintain an action upon it in his own name. This presents the question: What was the effect of that indorsement? At most, it cannot be regarded as amounting to anything more than a general indorsement in blank. An assignment to “.........” is certainly not an assignment passing title to any particular person. If it is an assignment at .all, it can have no operation further than to pass the title to the person who becomes the holder and owner, of the instrument. If it never leaves the hands of the original holder and ■owner, the title cannot, by virtue of such an assignment, pass out of him into any other person. We do not see how these propositions can be successfully controverted; and if not, it follows that an assignment like this is, as-above remarked, in effect neither more nor less than an indorsement in blank. When we reach this point, there-is no further difficulty. It is well settled that one who-holds a negotiable promissory note indorsed in blank: has a right to sue upon it as the bearer. If the original holder, after thus indorsing the paper, retains possession of it, he is at least a bearer, and may bring his-action against the maker.

2. 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 no 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.

What is said above relates, of course, to transactions absolutely bona fide, and not to those which are simply colorable and entered into as mere contrivances to substitute the wife for the husband as the real debtor. Transactions of this latter kind will not, of course, bear the test of scrutiny and investigation, and will not be permitted to stand.

3. Under the facts of this case, there was nothing to suggest any device of the kind just indicated. Royce had no interest whatever in the debt which Daniel owed to Morton B. Henry, or in the deed given to secure its payment. From all that appears, the loan to Mrs. Daniel was made in absolute good faith. It may be that RoyceV agent knew of the purpose for which the money was borrowed, but that of itself would not affect the validity of the transaction. The evidence clearly demanded a recovery by the plaintiff, and the court did not err in directing a verdict in his favor. Judgment affirmed.