1. Under my view of this case, the petition failed to set out a cause of action, and the court erred in overruling the general demurrer thereto. This was not a suit for damages against the defendants for fraudulently procuring from the plaintiff a note and deed to secure the same for the payment of her husband's debt and then transferring said note and deed into the hands of an innocent purchaser and thereby preventing her from setting up her defense to said note and deed against such innocent holder thereof (see Jones v. Crawford,107 Ga. 318, and Detwiler v. Bainbridge Grocery Co.,119 Ga. 981, supra), but this was a suit for money had and received, as the petition plainly shows, on the theory that the defendants had in their hands money derived from the sale of her separate estate.
2. In my opinion the court erred in refusing, upon a timely written request, to charge the jury as follows: "I charge you further that, although you believe that the defendants in this case knew that the deed and the note in question were given by the wife for the debt of her husband, yet if you find that the Glenville Bank did not have such knowledge or notice and took the paper before *Page 450 the maturity of the note in good faith for a valuable consideration the bank would have been protected against the right of the plaintiff to set up the invalidity of the papers. And the bank would in such circumstances have the right to sell the property conveyed by the deed and use the money derived from such sale in settling the note that it held against the defendants, and it could not be recovered by the wife from the defendants."
3. I think the court erred in charging the jury as follows: "If the property covered by the security deed was bona fide the property of the plaintiff, and if the debt secured or paid by the deed was the debt of L. E. DeLoach, and if the defendants knew that the plaintiff was a married woman when she made the note and deed to them, and if the Glenville Bank was an innocent transferee of the note and security deed upon a valuable consideration, before maturity, and without notice of any defense thereto, you should return a verdict in favor of the plaintiff for the amount you find that the defendants received or got the benefit of out of the proceeds of the sale of the property, with interest thereon at the rate of 7 per cent. per annum from the time of demand upon the defendants for the payment of same to the plaintiff, if there was demand." This was an incorrect statement of the law, and was not applicable to the pleadings and the evidence, and amounted to a direction of a verdict for the plaintiff.
4. The note and security deed given by the plaintiff were unenforceable by the defendants, as it is well settled that all contracts by a married woman whereby her separate property is pledged for the payment of her husband's debts are void (Code, §§ 53-502, 53-503); but the defendants borrowed money from the Glenville Bank and by written transfer pledged as security for the payment of the loan the note and deed which had been executed and delivered to them by the plaintiff. Admittedly the bank was an innocent purchaser and holder in due course. As such the bank's rights were superior to those of the plaintiff. The money received by the defendants on the loan from the bank was presumably applied towards the husband's debts. The loan from the bank was not paid by them. The note for $726.64 given by the plaintiff was unpaid, although the evidence shows that the bank made demand upon the plaintiff for payment. Thereafter the property conveyed by the plaintiff's security deed was sold at public outcry. The plaintiff *Page 451 bid in the property for $851 and received a deed thereto. The proceeds of the sale did not belong to her or to the defendants, but to the bank to the extent of satisfying their claim for $725 loaned to the defendants. The overplus, after the payment of the bank's claim and advertising and other expenses of sale, was turned over to the attorney conducting the sale as his fee. The evidence does not show that the defendants received any of the proceeds. All they received was the amount of the loan which was made to them by the Glenville Bank at the time the plaintiff's note and deed were hypothecated with the bank. Hence, the contention of the plaintiff that the defendants received a sum of money out of her separate estate is not borne out by the evidence, and her suit, which is one based on money had and received, must fail.
This is not a case where the plaintiff sued for damages on the theory that another fraudulently procured her to pledge her separate estate for the payment of her husband's debts and by transferring her negotiable paper into the hands of an innocent purchaser prevented her from asserting against such innocent holder her rights to the property involved (see Jones v.Crawford and Detwiler v. Bainbridge Grocery Co., supra), but is avowedly a suit for money had and received on the theory that the defendants had in their hands money which was derived from the sale of her separate estate. It is fundamental that a plaintiff must recover on the case as laid, and the evidence here wholly fails to support the allegations of the petition that the defendants received a sum of money from her separate estate. Accordingly, the verdict returned by the jury in favor of the plaintiff for $726.64 and interest was unauthorized.
The court erred in overruling the motion for new trial.