Veal v. Hurt

63 Ga. 728

• Court: Supreme Court of Georgia
• Decided: September 15, 1879
• Status: Published

Opinion

Jackson, Justice,

The facts make the following case: The husbard tried to borrow money from the plaintiff to pay for a car to take photographic pictures, which he had contracted for, and for which he was to pay $300.00, the amount he desired to borrow. He was refused. He then proposed to bring the lender a note for that sum signed by the wife as borrower, and secured by a power of attorney from the wife to the lender to sell her real estate in Atlanta, and pay the note if not paid. The note was to bear interest at 33 per cent, per annum. This was agreed, and the contract was consummated. One hundred and twenty-five dollars was paid and credited on the note, and suit was brought for the balance. It was defended by the wife on the ground that it was the assumption of the debt of her husband, and a contract of suretyship to bind her separate estate to pay his debt.

1. If the husband owed a debt which he was bound to pay, then the money was loaned to enable her to assume his debt, if the lender had knowledge thereof. Did he owe a debt? He had contracted for the car and owed $300.00 therefor. Therefore he owed for a car and was bound to pay therefor when it was delivered. Did the lender know it ? He knew all about it. The car was not for the wife. Nothing was said about the title thereto being put in her, but the money was loaned to enable the husband to pay for it for Ms own venture. In other words, it -was loaned virtually that the wife might assume the debt of her husband which he owed for this car he had contracted for, and' therefore it is a contract absolutely void under section 1783-of our Code, which declares that she cannot bind her separate estate “ by any assumption of the debts of her husband.” The wife was never present with the lender. No contract of any sort was made with her in person by him; the husband managed the whole affair, and induced her to go into the arrangement by assuring her that she would never have to pay a cent, for he would make enough to settle it all.

2. The contract, too, bound the separate estate of the wife-as security for the debt. She gave the lender a power of attorney to sell her town property and pay the debt therewith, with obligation to turn over the balance to her. If the debt was the husband’s, if the car was his, if it was for his venture, and not her property or for her use, then there was a naked effort to bind her separate estate as security to get the money for her husband in order to pay his debt. The same section of our Code also declares that “ she cannot bind her separate estate by any contract of suretyship,” and that “ any sale of her separate estate made to a creditor of her husband in extinguishment of his debts, shall be absolutely void.” While this was not exactly a sale to a creditor of her husband, yet it was a power to a lender of money to the wife for the husband, to sell her separate estate in order to pay for a venture of his, and is equally repugnant to the spirit and reason'of the statute.

It seems to us that the contract is obnoxious to the provisions of the statute, in both views of it, as an assumption debt of the husband, and as an attempt to bind her separate property to pay it.

It matters not, therefore, what may have been the irregularities of the trial; as the verdict is right on the facts, and could not in law be otherwise, the judgment is affirmed.

See 59 Ga., 254-380; 61 Ib., 662; Sutton vs. Akin, not yet reported.

Judgment affirmed.