Southern Mut. Bldg. & Loan Ass'n v. Perry

• Decision Date: 25 March 1898
• Citation: 103 Ga. 800,30 S.E. 658
• Parties: SOUTHERN MUT. BUILDING & LOAN ASS'N. v. PERRY et al.
• Court: Georgia Supreme Court

30 S.E. 658

103 Ga. 800

SOUTHERN MUT. BUILDING & LOAN ASS'N.

v.PERRY et al.

Supreme Court of Georgia.

March 25, 1898.

Trial—Right to Open and Close — Purchaser of Note—Wife as Surety—Notice.

1. An admission by the defendants in a proceeding to foreclose a negotiable "mortgage note" that they executed the paper, and that the plaintiff is the owner thereof, entitles them to open and conclude the argument.

2. The mere fact that one of two joint makers of such an instrument is the wife of the other—there being nothing upon its face to indicate that she signed as a surety—is not, though her true relation to the paper was one of suretyship only, sufficient to charge a purchaser of the paper with notice of the suretyship.

(Syllabus by the Court.)

Error from superior court, Habersham county; J. J. Kimsey, Judge.

Action by the Southern Mutual Building & Loan Association against W. S. Perry and another. Tudgment for defendants, and plaintiff brings error. Reversed.

Jones & Bowden, for plaintiff in error.

J. C. Edwards and J. B. Estes, for defendants in error.

LUMPKIN, P. J. 1. The question of practice dealt with in the first headnote has been settled by the decision of this court in Montgomery v. Hunt, 93 Ga. 438, 21 S. E. 59.

2. A "mortgage note" executed by W. S. Perry and his wife, payable to T. H. Taber or bearer, was negotiated by the latter, before its maturity, to the Southern Mutual Building & Loan Association. It instituted a foreclosure proceeding, and was met by the defense that the wife had signed the instrument as a surety only, and was therefore not liable. There was nothing on the face of the paper to indicate that her reflation thereto was one of suretyship, and, after a careful scrutiny of the record, we are unable to find any evidence tending to show that the plaintiff had, directly or indirectly, any notice as to the capacity in which Mrs. Perry signed, other than as disclosed by the instrument itself, which purported to have been executed by herself andher husband as joint principals. In the light of these facts, the judgment against the plaintiff was contrary to law, and cannot be upheld. See, in this connection, Strickland v. Vance, 99 Ga. 531, 27 S. E. 152—citing Howard v. Simkins, 70 Ga. 322, and Strauss v. Friend, 73 Ga. 782; also, the cases of Perkins v. Rowland, 69 Ga. 661, and Laster v. Stewart, 89 Ga. 181, 15 S. E. 42, which are somewhat in point. The decision In Venable v. Lippold (Ga.) 29 S. E. 181, directly sustains the ruling now...