McCrory v. Grandy & Son , 92 Ga. 319 ( 1893 )

Simmons, Justice.

The firm of Ellis & McCrory, desiring to borrow money, wrote to Grandy & Son, of Norfolk, Va., for that purpose, and proposed to give as their security for the loan Mrs. Jane Y. McCrory, the mother of one of the firm. Grandy & Son agreed to make the loan on this security; but upon advising with attorneys in this State, they were informed that Mrs. McCrory, being a married woman, could not bind herself as security; and it was then arranged that Mrs. McCrory should borrow the money from Grandy & Son in her own name, she giving her note for the amount borrowed, and making the lenders a deed to certain land, her separate estate, to secure the payment of the note. Grandy & Son knew that she intended to lend the money to Ellis & McCrory, she having given an order to Grandy & Son to let Ellis & McCrory have the money on their draft. Ellis & Mc-Crory drew on the fund thus borrowed by Mrs. McCrory, until it was exhausted. When the note fell due, Mrs. McCrory refused to pay it, and suit was brought thereon by Grandy & Son. To this suit she pleaded that the debt for which the note was given was not her own, but was the debt of Ellis & McCrory, and that she was simply a security, and being a married woman, was not liable thereon. On this state of facts several requests to charge were made by her counsel, which are set out in the report prefixed to this opinion. She made a motion for a new trial on the several grounds set out therein, which was overruled by the court, and she excepted.

1-2. Under our code, section 1783, there are three things which a married woman having a separate estate cannot lawfully do. She cannot bind her separate estate by any contract or suretyship, nor can she assume the debts of her husband, nor sell her separate estate to a creditor of the husband to extinguish his debts. If she should do any of these things, the transaction would be absolutely void. These are the only restrictions put upon her in dealing with her separate estate, and outside of them, she stands upon the same footing as a man or a feme sole. She can borrow money and pledge her separate estate for the payment thereof, and can lend the same money to her son, or to a firm of which he is a member, and the knowledge of the lender that she is borrowing the money for this purpose will, not affect the validity of the transaction. White v. Stocker, 85 Ga. 200. Of course, all this must be done in good faith. She must be the real debtor to the lender. If the relation of debtor and creditor exists between the lender and a third person, and a married woman is made the ostensible debtor, she would be nothing but a security, and the note would be void, although the writings executed by her to secure the debt are signed only by her. This would be a device to cover up a real case of suretyship on her part. See the reasoning in the case of Schofield v. Jones, 85 Ga. 820.

If the original negotiations contemplated that a married woman should be security simply, and the lender, upon ascertaining that she could not lawfully bind herself as security, declines to lend the money, she could renew the negotiations, either by herself or her agent, and borrow the money in her own name with the purpose of lending it to the original applicant for the loan; and if the money is lent to her, and she becomes the real debtor to the lender, she will be liable therefor just as if she had commenced the original negotiations for herself. Where she is the principal debtor, she is upon the same plane as a man with regard to her separate estate, and is equally bound upon her contracts. These views cover the requests to charge on this subject, and the exceptions to the charge as given.

3. Pending the trial the plaintiffs introduced in evidence an order to them purporting to be signed by Mrs. McCrory, authorizing them to let Ellis & McCrory have the money which she had borrowed, upon their drafts. This paper was not objected to by the defendant’s counsel, nor was proof required of its execution. After the trial, when the order was shown to the defendant, she denied its genuineness, and made all affidavit that she had not signed it or authorized any one to sign it for her, and this is made a ground of the motion for a new trial, upon the theory of newly discovered evidence, it appearing from this ground and the affidavit in connection with it that Mrs. McCrory was not present at the trial. We think, where counsel is conducting the trial of a case, and a paper is offered in evidence by the other side, and counsel does not know whether it is genuine, due diligence requires that he shall demand proof of its execution. If he fails to do this, and allows the paper to go in evidence without objection, and after the trial it is discovered that the paper is a forgery, this discovery will not be cause for a new trial unless it also appears that the opposite party or his counsel knew or had reason to believe that the paper was not genuine.

4. The other grounds of the motion are sufficiently covered by the fourth head-note. Judgment affirmed.