Huntsville Bank & Trust Co. v. Thompson

SOMERVILLE, J. Under the defendant wife’s plea that the debt sued on was the debt of her husband, as to which she was a surety only, the only issue to be determined was whether the debt, or any part of it, was in fact the debt of the wife. Mills v. Hudmon, 175 Ala. 448, 57 So. 739; Hanchey v. Powell, 171 Ala. 597, 55 So. 97. The status of forbidden suretyship. could not be affected by the fact that there was a collateral consideration moving to her as the inducement to her undertaking as surety. Hence the fact that she was independently indebted either to her husband or to some other person, and that she promised to pay her husband’s individual debt in consideration of the cancellation pro tanto of her own indebtedness to him or another, was wholly irrelevant to the issue, and could not avoid the inhibition of the statute. Code 1923, § 8272. The only consideration which can have that effect is one inhering in the immediate transaction — the creation of the debt — by virtue of which she then becomes bound to pay it as her own primary obligation. At common law the wife could not contract at' all. Blythe v. Dargin, 68 Ala. 370. Our statute, forbidding to her any contract of suretyship for her husbánd (Code 1887, § 2349; Code 1923, § 8272), did not create a disability; but, removing all other contractual disabilities, it merely preserved the wife’s original disability as to such contracts of suretyship. There is no merit in the contention that this statute violates the Fourteenth Amendment. That amendment was not intended to abrogate the common law, nor to create new rights of person or property not known to the common law. The rulings of the trial court on the pleadings and evidence, and its refusal to compel defendant to answer interrogatories which were entirely irrelevant to the issue, were in accord with the principles above announced, and were free from error. Let the judgment be affirmed. Affirmefj. ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.