Strauss v. Friend

Jackson, Chief Justice.

The defendant in error being a married woman, made her promissory note to one Samuel Gunhouse; it was, after its maturity, transferred to the plaintiff in error; to secure it, she made a mortgage on real estate in Macon, which was transferred with the note; on the petition by the plaintiff in error to foreclose this mortgage, the defendant pleaded that it -was given as security for the debt of another, and did not bind her; if not, that it was a voluntary gift to her son-in-law of a promise to pay and without consideration, and therefore nudum pactum. The court below charged in favor of the defendant in error. A motion for a new trial was overruled, and plaintiff excepted.

1. The plaintiff in error received for value the note and mortgage when over-due, and was charged with notice of all equities between the parties. If it had been done before due, he would have been protected against this married woman, even if the transaction was a security for the debt of another (70 Ga., 322); but if not transferred before due, the security is void, under section 17S3 of the Code. So to the same point is 70 Ga., 57, and 09 Id 661. So that, if this note and mortgage were given by defendant in error to help her son-in-lawraise money for him - self or firm, and were traded after due, the mortgage does not bind her. That, they were transferred after due is not denied, and that they w-bre used to pay debts or raise money for the son-in-law’s-firm is equally clear. There is also evidence that the s'on-in law, failing to get money to relieve his embarrassments, got the note and mortgage for that purpose. He < could not therefore enforce the payment of the note and mortgage; and the plaintiff in error, having purchased, alter their maturity, is in no better situation than the.-payee.

2. But the proof is that the defendant in error frequently demanded the return of this note and mortgage; lhatthe son-in-law paid nothing for it; that it was a mere gift or loan ; that the demand for its return was made time and again before it got into the possession of the plaintiff in error. Such being the case, it is invalid. 5 Am. Reports, 556; 9 Am. Dec., 191; 18 Johnson’s R.. 145.

So that, in any view, the verdict and judgment would seem right; the security for another being void under our Code, and any contract of suretyship not. being binding on her by the statute law, Code, §1783, concludes the case. See also 63 Ga., 728, and 59 Id., 254.

Judgment affirmed.