Lester v. Jacobs

• Decision Date: 19 March 1925
• Docket Number: 8 Div. 740
• Citation: 103 So. 682,212 Ala. 614
• Parties: LESTER v. JACOBS.
• Court: Alabama Supreme Court

103 So. 682

212 Ala. 614

LESTER v. JACOBS.

8 Div. 740

Supreme Court of Alabama

March 19, 1925

Rehearing Denied April 16, 1925

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Action on promissory note by Mrs. M.J. Jacobs against Beatrice H Lester and W.E. Lester. Judgment for plaintiff, and defendant Beatrice H. Lester alone appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

R.C Brickell and R.E. Smith, both of Huntsville, for appellant.

D.P Wimberly and Proctor & Snodgrass, all of Scottsboro, for appellee.

THOMAS J.

The suit was to collect interest on a promissory note executed by a married woman and her husband.

The question of fact for the jury was the suretyship vel non of the wife under the statute (Code 1907, § 4497; Code 1923, § 8272) and our decisions (Smith v. Rothschild & Co. [ Ala.Sup.] 102 So. 206; Alabama Chemical Co. v. Hall [Ala.Sup.] 101 So. 456; Trost v. Beck, 211 Ala. 323, 100 So. 472; Leath v. Hancock, 210 Ala. 374, 98 So. 274; Little v. People's Bank of Mobile, 209 Ala. 620, 96 So. 763; Myers v. Steenberg, 206 Ala. 457, 90 So. 302; Morriss v. O'Connor, 206 Ala. 542, 90 So. 304; Smith v. Thompson, 203 Ala. 87, 82 So. 101; Street v. Alexander City Bank, 203 Ala. 97, 82 So. 111; Elba Bank & Trust Co. v. Blue, 203 Ala. 524, 84 So. 748; Bushard v. McCay, 201 Ala. 173, 77 So. 699; Trotter Bros. v. Downs, 200 Ala. 158, 75 So. 906; Griffin v. Dawsey, 196 Ala. 218, 72 So. 32; Warren v. Crow, 198 Ala. 670, 73 So. 989; Vinegar Bend Lbr. Co. v. Leftwich, 197 Ala. 352, 72 So. 538; Staples v. City Bank & Trust Co., 194 Ala. 687, 70 So. 115; Adams v. Davidson, 192 Ala. 200, 68 So. 267; Hall v. Gordon, 189 Ala. 301, 66 So. 493; Bley v. Lewis, 188 Ala. 535, 66 So. 454; Marbury Lbr. Co. v. Woolfolk, 186 Ala. 254, 65 So. 43; Meyrovitz v. Levy, 184 Ala. 293, 63 So. 963; Corinth Bank & Trust Co. v. King, 182 Ala. 403, 62 So. 704; Elkins v. Bank of Henry, 180 Ala. 18, 60 So. 96; Interstate Bank v. Wesley, 178 Ala. 186, 59 So. 621; Lamkin v. Lovell, 176 Ala. 334, 58 So. 258; Evans v. Faircloth-Boyd Merc. Co., 165 Ala. 176, 51 So. 785, 21 Ann.Cas. 1164; Maxwell v. Herzfeld, 149 Ala. 67, 42 So. 987; Gibson v. Wallace, 147 Ala. 322, 41 So. 960; Sample v. Guyer, 143 Ala. 613, 42 So. 106; Mills v. Hudmon & Co., 175 Ala. 448, 57 So. 739; Hanchey v. Powell, 171 Ala. 597, 55 So. 97; Lunsford v. Harrison, 131 Ala. 263, 31 So. 24; First National Bank v. Moragne, 128 Ala. 157, 30 So. 628; Gafford v. Speaker, 125 Ala. 498, 27 So. 1003; Henderson v. Brunson, 141 Ala. 674, 37 So. 549; Mohr v. Griffin, 137 Ala. 456, 34 So. 378; Richardson v. Stephens, 122 Ala. 301, 25 So. 39; Hollingsworth v. Hill, 116 Ala. 184, 22 So. 460; McNeil v. Davis & Son, 105 Ala. 657, 17 So. 101; Hubbard, Price & Co. v. Sayre, 105 Ala. 440, 17 So. 17; Giddens v. Powell, 108 Ala. 621, 19 So. 21; Clement v. Draper & Co., 108 Ala. 211, 19 So. 25), which forbid the wife, directly or indirectly, to become surety for the husband. Smith v. Rothschild & Co. (Ala.Sup.) 102 So. 206; Rollings v. Gunter (Ala.Sup.) 101 So. 446.

The whole evidence bearing on the issue has been carefully examined, and it is our opinion that the defendant wife did not discharge the burden of proof that rested upon her under the plea of sole surety--to secure a debt entirely that of her husband. Gibson v. Wallace, 147 Ala. 322, 325, 41 So. 960.

It may be noted of the tests under the statute of suretyship of the wife for the husband that in Gibson v. Wallace, supra, the wife owned the farm, live stock, and agricultural implements; "the husband owned nothing, and this fact was known to Wallace," the mortgagee and payee. In Lunsford v. Harrison, 131 Ala. 263, 31 So. 24, the mortgage upheld was given for a joint debt "as to which the wife was an actual coprincipal." In Clement v. Draper & Co., 108 Ala. 211, 19 So. 25, and Mills v. Hudmon & Co., 175 Ala. 448, 57 So. 739, the questions were whether the debt secured by the mortgage being foreclosed, "or any part of it, was the debt of the wife," and it was held that if any distinct portion of the debt was exclusively the husband's, "the wife's security obligation would be null and void to that extent and no further." In Mohr v. Griffin, 137 Ala. 456, 34 So. 378, the lands were those of the wife, and she owed for the purchase money, the husband cultivated the same under the lease from the wife and incurred an indebtedness, and it was held the wife may make a bona fide conveyance of her lands to a third person in payment or purchase of the husband's debts. The case of Sample v. Guyer, 143 Ala. 613, 42 So. 106, was based on a conveyance reciting the fact of indebtedness as being that of the wife, and presumptively it spoke the truth. In Meyrovitz v. Levy, 184 Ala. 293, 63 So. 963, assumpsit was maintained on notes executed by the husband and wife, and the burden of proof was declared to be upon the wife to show she signed merely as a surety. Warren v. Crow, 198 Ala. 670, 73 So. 989, and Gordon Hall v. Gordon, 189 Ala. 301, 66 So. 493, sustained the suits of creditors where money was borrowed from one not the husband's creditor and who did not know the purpose was to pay the husband's debts. In Griffin v. Dawsey, 196 Ala. 218, 72 So. 32, the instrument challenged and sustained purported to be a joint obligation to obtain funds to erect a home for the family of the obligors. And in Bley v. Lewis, 188 Ala. 535, 66 So. 454, there was evidence tending to show that a sum paid by the mortgagors was to satisfy a prior mortgage given by the wife on the land to a syndicate, and formed a part of the indebtedness for the security of which the mortgage which was challenged was given. In Smith v. Rothschild & Co. (Ala.Sup.) 102 So. 206, the creditor negotiated a loan from a bank on the debtor's wife's land, and procured the transfer of the same and it was foreclosed; held, not a bona fide purchaser of the mortgage from the bank taking the mortgage in good faith.

Under the plea of the defendant wife, did Mrs. Jacobs lend the $10,000 to the husband alone, and did the wife sign as surety only for such debt of the husband?

The evidence was in conflict on foregoing issues of fact. The husband testified that the wife only signed as surety, and that he procured, and the loan was made to him. The appellant testified she did not tell Mrs. Jacobs that she was only signing the note as surety for the husband. She declared that this was not discussed. Appellee's version of the contract is thus stated:

"*** On the 6th of January they (the husband and wife) came one morning tolerable early, and they got out and came in, and we talked awhile; and they commenced talking about me letting them have the money, and I told Mrs. Lester I thought they were going to make me a mortgage for the money, to fix me a mortgage, and she said: 'No, my note is as good as my word, and my word is as good as a mortgage, and I will never sign another mortgage on my land.' So I thought it should be as good, and as I had promised to let them have the money, I would go on and let them have it, thinking it would be all right. I let them have the money. Judge Lester had the note in his pocket. He took it out of his pocket and filled it out, and I asked Mrs. Lester to sign it, and she signed it. Then Judge Lester signed it. (Witness was here handed the note sued on.) That is the note; I reckon it is. Nothing has been paid on it. I am not positive that either of them told me what they wanted with this money. I just thought from what they said that they were getting the money to build with as they were fixing to build; they did build. The impression they left on me is that is what they wanted with the money. I could not state that positively. I do not remember that Judge Lester or Mrs. Lester either said anything about paying any debts they owed."

The appellee is corroborated by Mrs. Eula Clay Eustace, who said:

"Before I was married, I was Eula Clay, a daughter of Alec Clay. Mrs. Jacobs is my mother. I was present at the time Judge and Mrs. Lester came up to my mother's for some money. I was in the room at the time the transaction was had. They came down one morning some time between 10 and 12 o'clock, I think. They said they came for the money, and Mama insisted on a mortgage, and Mrs. Lester said: 'No, she would not sign any mortgage to her property any more.' She said her word was as good as a note, and her note good as a mortgage; and they said something about wanting $15,000, and Mama told them she could only let them have $10,000, and they filled the note out, and Mrs. Lester signed it first and then Judge Lester signed it. They were both talking for the money; I think one about as much as the other. Mrs. Lester does very well as a talker. She said her word was as--a note and her note as good as a mortgage, and signed the note first. I remember Judge Lester being there prior to that time, I think it was in

November, and said they wanted to get some money; just said they wanted to get some money; I don't think he used any particular name. On that occasion of getting this money, I don't remember hearing Judge Lester say anything about wanting this money to pay off security debts or anything of that kind. I don't think they said what they wanted with the money; but they were speaking of their new home and the mansion all the time they were there. They were building a mansion at that time. I think they have completed it now. I don't know where this money went, whether it went into that mansion or not."

The conclusion of the jury upon the evidence was correct.

Assignments of error are based on the overruling of appellant's objection to the introduction by plaintiff, in rebuttal, of parts of the transcript of the testimony of Mrs. Eustace given on the...