Collins v. Freeman , 226 Ga. 610 ( 1970 )

Undercofler, Justice,

concurring specially. “Under our statute, a wife cannot 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, is void. Civil Code (1910), § 3007 [now § 53-503]. A married woman may give land to her son. She may convey it to him in order that he may have a basis of credit, or for the purpose of enabling him, by a conveyance of the land, to secure the payment of his debts. If she does so, and does not herself become liable for the payment of the debt, she is bound by her deed, and must abide the loss of the land arising from her maternal generosity. But if the deed is not what it purports to be, but is a mere colorable transaction and part of a scheme, in which the creditor participates, to make her in fact a surety for the debt of her son or husband, though not nominally bound for its payment, the transaction is contrary to law and void. National Bank of Athens v. Carlton, 96 Ga. 469 (23 SE 388).” Blackburn v. Lee, 137 Ga. 265, 266 ( 73 SE 1). See also Hawkins v. Kimbrell, 158 Ga. 760 (124 SE 351); Saxon v. National City Bank of Rome, 169 Ga. 784 (151 SE 501); and Williamson v. Walker, 183 Ga. 320 (188 SE 346). The legislature in 1969 (Ga. L. 1969, pp. 72, 73) changed the law regarding the suretyship of a married woman (Code Ann. § 53-503) but this transaction is controlled by the prior law.