Bowden v. Grimsley , 193 Ga. 392 ( 1942 )

1. It is declared in the Code, § 53-503, that while a wife "may contract, she may 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."

2. The only issue in the present case being whether the note of the plaintiff, a married woman, was executed as a contract of suretyship for her son, no debt of the husband being involved, the parts of the foregoing section relating to assumption of debts of the husband and to sale in extinguishment of such debts are irrelevant.

3. While a married woman can not in any manner become a surety for her son so as to bind herself, or her property, for the payment of his debt, yet she may extinguish his debt, or cause it to be extinguished, on her own credit. Villa Rica Lumber Co. v. Paratain, 92 Ga. 370 (17 S.E. 340). In such case the knowledge of the lender of her purpose in the transaction will not affect its validity. McCrory v. Grandy, 92 Ga. 319 (18 S.E. 65); Dunnaway v. Fort, 50 Ga. App. 330 (178 S.E. 163).

4. The decisions in Gross v. Whitely, 128 Ga. 79 (57 S.E. 94), Ginsberg v. Peoples Bank of Savannah, 145 Ga. 815 (89 S.E. 1086), and similar cases, relating to assumption or extinguishment of debts of husband, are inapplicable. The evidence authorized the verdict denying to the plaintiff the cancellation prayed, and the court did not err in overruling her motion for a new trial based upon the general grounds only.

Judgment affirmed. All the Justicesconcur.

No. 13974. JANUARY 14, 1942. REHEARING DENIED FEBRUARY 12, 1942. Mrs. J. F. Bowden filed a suit in equity against Mrs. J. E. Grimsley, the widow and sole heir at law of J. E. Grimsley, deceased, seeking cancellation of a note and a security deed which she had executed and delivered to J. E. Grimsley in his lifetime, the alleged ground for such relief being that the note and security deed were given in a transaction wherein the plaintiff undertook to become surety for her son, W. W. Bowden, and were void for the reason that she, being a married woman, could not bind her estate by any contract of suretyship. The defendant filed answer and cross-action, denying the allegations as to suretyship, and asking for a judgment on the note. On the issues thus presented the jury found for the defendant. The plaintiff's motion for new trial was overruled, and she excepted. The motion contained only the general grounds. At the trial it was agreed that the plaintiff was a married woman at the time of executing the note and security deed, and that the only issue for determination was whether they were executed in an original undertaking by Mrs. Bowden, or in an attempted suretyship for her son. On this issue the only evidence was the following testimony of W. W. Bowden: "I am the son of Mrs. J. F. Bowden, the plaintiff in this case. In 1931 I owed Mr. J. E. Grimsley four notes of $25 each, which became past due and which I was unable to pay. Mr. Grimsley agreed to loan my mother enough money to pay these notes, on which her note was given, secured by a deed to certain real estate. I secured my mother's consent to do this. Mr. Grimsley had the note and deed to secure debt prepared, and I took them to my mother, and she executed them. Mr. Grimsley gave my mother a check for $110, which she indorsed and used to pay the four notes. Mr. Grimsley marked the four notes ``paid in full' and did not look to me further for any payment but expected my mother to pay him. My debt to him was fully extinguished and paid off. At the time of giving Mr. Grimsley the note and deed my mother did not owe him any money herself, and the property she deeded him was her separate estate."