Bros v. Heard, 22201.

• Decision Date: 23 February 1933
• Docket Number: No. 22201.,22201.
• Citation: 46 Ga.App. 497,167 S.E. 913
• Parties: WILSON BROS. v. HEARD.
• Court: Georgia Court of Appeals

46 Ga.App. 497

167 S.E. 913

WILSON BROS.

v.HEARD.

No. 22201.

Court of Appeals of Georgia, Division No. 2.

Feb. 23, 1933.

Rehearing Denied March 4, 1933.

Syllabus by the Court.

A married woman is not prohibited by law as provided in sections 2993 and 3007 of the Civil Code of 1910, or otherwise, from making her separate estate liable by a contract of guaranty.

Error from City Court of Colquitt; Waldo De Loache, Judge.

Action by Wilson Brothers against Mrs. I. A. Heard. Judgment for defendant, and plaintiff brings error.

Reversed.

John C. Parker, of Moultrie, for plaintiff in error.

W. G. Martin, of Moultrie, for defendant in error.

STEPHENS, Judge.

The only restriction upon the right of a married woman to contract is that she cannot make herself liable to pay her husband's debts, and "can not bind her separate estate by any contract of suretyship." Civil Code 1910, §§ 2993, 3007. These restrictions should not be extended beyond their clear import. Since the law makes a distinction between a contract of suretyship and one of guaranty (Civil Code, § 3538), and this difference in the two contracts is often very material to a determination of the rights of the parties, as, for instance, whether two defendants are joint obligors, and whether one can be sued in a county other than his residence as provided in the Constitution, art. 6, § 16, par. 4 (Civil Code, § 6541), the inhibition upon a married woman's execution of a contract of suretyship should not apply to any other contract made by her. In National Bank of Tifton v. Smith, 142 Ga. 663, 83 S. E. 526, 528, B. R. A. 1915B, 1116, where a married woman executed a note, without consideration, to her son, as an accommodation, and he pledged the note to another as security for the latter's becoming a surety for the son's debt to a bank, it was held, in a suit on the note by the son's creditor against the married woman, that her obligation was that of a surety, and she was therefore not liable. The court said in the opinion: "A married woman cannot make herself liable by becoming an accommodation indorser, and the spirit of the statute outlaws a contract fixing an ultimate liability for the same debt which she cannot primarily contract. The whole arrangement contemplated a loan to the son on the faith of the mother's suretyship. If the son had borrowed the money from the bank on a note with his mother, her relation to the bank would have been that of a surety, and her indorsement would have been ineffectual to bind her to pay her son's debt, on account of the prohibition of the statute. Instead of undertaking to contract directly with the son's creditor, she contracted with one to assume a relation of suretyship on the faith of her promise that the ultimate liability of her son's default should be borne by her." In that case the contract of the married woman, when the payee indorsed the note and obtained the money upon it, became a contract of suretyship. It clearly was not a contract of guaranty.

The contract in the case now before the...