Jones v. Rice

• Citation: 92 Ga. 236,18 S.E. 348
• Parties: JONES. v. RICE.
• Decision Date: 26 June 1893
• Court: Georgia Supreme Court

18 S.E. 348

92 Ga. 236

JONES.

v.RICE.

Supreme Court of Georgia.

June 26, 1893.

Charges on Wife's Separate Estate.

1. On the presumption that the common law prevails in North Carolina, unaltered by statute, as to the rights and powers of a married woman to charge her separate estate, a mortgage upon her land, executed by her to secure the payment of a debt created for the benefit of her husband, would be valid, it not appearing that there was any restriction upon her power of disposition imposed by the terms of any settlement, or other conveyance under which her property was held. if, while her land was incumbered with such mortgage, she, desiring to exchange the same for other land, in order to facilitate this object procured a stranger to advance money or property in part discharge of the mortgage lien, and gave to him her promissory note for the amount, this note being executed and delivered in North Carolina, and afterwards she removed to the state of Georgia, and here executed other promissory notes in renewal of the one so given in North Carolina, the renewal notes are not without consideration moving to her, but are valid and binding upon her separate estate here, their real consideration being the benefit which she derived from the advance made by the payee to disincumber her land in North Carolina.

2. There was no error in denying a new-trial.

(Syllabus by the Court.)

Error from superior court, Towns county; C. J. Wellborn, Judge.

Action by J. M. Rice against M. A. Jones to recover on promissory notes. Plaintiff had Judgment, and a new trial was denied. Defendant brings error. Affirmed.

A. F. Underwood & Son and J. J. Kimsey, for plaintiff in error.

W. S. Pickrell, M. G. Blackwell, and Howard Thompson, for defendant in error.

BLECKLEY, C. J. 1. Nothing appearing to the contrary, we may presume that the common law prevails in the state of North Carolina, unaltered by statute, as to the rights and powers of a married woman to charge her separate estate. The common law disabled her to charge herself personally by any contract for the payment of money. No judgment against her could be recovered on such a contract, but she had capacity to charge her separate estate by her contract Whether that estate received the benefit or consideration of the debt with which she incumbered it or not In order to charge it for anything which was not directly beneficial to it, it was necessary that she should manifest her intention so to do, and mortgaging or pledging her separate estate for the payment of the debt of another was a sufficient manifestation of such intention. That law did not disable her from binding her separate estate for the payment of her husband's debt. Prior to the adoption of the Code she could in this state, if unrestrained by the instrument creating her separate estate, secure her husband's debt in this manner. Carmicha...