Taft v. . Covington

ClabKSON, J. We think the evidence excepted to by plaintiff and to which he assigned error, and the request by plaintiff for prayer for instruction, should have been granted. The mortgage made by F. P. Covington and W. E. Ewing to the plaintiff for purchase money on the land they purchased from plaintiff need not have had the joinder of their wives to be effectual to pass the whole interest, according to the provisions of the mortgage. C. S., 4101. This is immaterial, as we are dealing with defendants’ liability on the note. Trust Co. v. Black, 198 N. C., at p. 221. The note is negotiable. Susan PL Covington and Josie Ewing, being sui juris, signed the negotiable note with their husbands, the note reciting “for value received.” C. S., 3166. C. S., 2507, is as follows: “Subject to the provisions of section 2515 of this chapter, regulating contracts of wife and husband affecting corpus or income of estate, every married woman is authorized to contract and deal so as to affect her real and personal property in the same manner and with the same effect as if she were unmarried, hut no conveyance of her real estate shall be valid unless made with the written assent of her husband as provided by section six of Article X of the Constitution, and her privy examination as to the execution of the same taken and certified as now required by law.” The effect of the Martin Act (this section) is to take married women out of the classification which the law recognized, prior to its enactment, and to make them, with respect to capacity to contract, sui juris. This section is held to mean what it plainly says, that, except as to contracts with her husband, in which the forms required by section 2515, must still be observed, and except in conveyances of her real estate, in which case her privy examination must still be taken and her husband’s written consent had, a married woman can now make any and all contracts so far as “to affect her real and personal property,” in the same manner and to the same effect as if she were unmarried. N. C. Code, 1927 (Anno.), p. 853, citing numerous authorities. *56 C. S., 2977 : “The person primarily liable on an instrument is the person who by the terms of the instrument is absolutely required to pay the same. All other parties are secondarily liable.” A surety on an instrument comes squarely within the definition of a person whose liability is primary, for he is, by the terms of the instrument, absolutely required to pay the same. Rouse v. Wooten, 140 N. C., 557, 559. Joint makers upon the face of a negotiable instrument are deemed to be primarily liable thereon, and in an action upon the note the burden is upon the defendants to prove any matter in release. Roberson Co. v. Spain, 173 N. C., 23; Howell v. Roberson, 197 N. C., at p. 573-4. C. S., 3004: “Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.” C. S., 3008: “Absence or failure of consideration is matter of defense as against any person not a holder in due course, and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.” C. S., 3009: “An accommodation party is one who has signed the instrument as maker, drawer, acceptor or indorser without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.” C. S., 3041: “The maker of a negotiable instrument by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse.” In Hunt v. Eure, 188 N. C., 716, the note was payable to J. Marvin Hunt, and it was held unnegotiable and a consideration is not presumed and must be both averred and proved. At p. 719 it is said: “In such case the burden of proving a consideration is upon the plaintiff. If the note, though unnegotiable as in the present case, recites value, the plaintiff makes out a prima facie case by showing the execution and delivery of the note. If the defendant then offers evidence tending to establish a failure of consideration, the burden remains with the plaintiff to satisfy the jury by the preponderance of all the evidence that the contract is supported by a valuable consideration. The defendant when sued on a nonnegotiable paper is not required under our decisions to rebut the prima facie proof of value by the greater weight of the evidence.” In Swift & Co. v. Aydlett, 192 N. C., at p. 348, we find: “The note, being in form a negotiable instrument, imports prima facie a consideration, and where the defense of failure or want, of consideration is inter *57 posed to defeat a recovery, as in the instant suit, the burden, of course, is on the maker to establish the defense by the greater weight of the evidence. Piner v. Brittain, 165 N. C., 401; Hunt v. Eure, 188 N. C., 716.” Cowan v. Williams, 197 N. C., 433: “It would seem that the plea of nudum pactum is not open to the defendant, Lucy Williams, as against the plaintiff, who is a holder in due course of the note sued on. Hence the instruction, above set out, which forms the basis of one of the plaintiff’s exceptions, we apprehend, should be held for error. Angier v. Howard, 94 N. C., 27. A note under seal imports consideration, and it is presumed from the use of a seal, that the consideration is good and sufficient,” citing numerous authorities. In Building & Loan Association v. Swaim, 198 N. C., 14, the wife gave a note to the Building & Loan to pay her husband’s defalcation. At pp. 17 and 18, it is said: “There was no new consideration for the defendant’s note. The initial debt was not canceled and the plaintiff is not precluded from proceeding against the debtor’s estate. The widow by executing the note has received no benefit; she has acquired nothing from her husband’s estate that she would not have been entitled to if she had not given the note. The estate of A. E. Swaim is insolvent, and so is the defendant. The transaction in question, as was said in Paxson v. Neilds, supra (187 Pa. St., 385, 21 A. S. R., 888), is 'a one-sided affair, and exclusively for the benefit’ of the plaintiff.” Trust Co. v. Black, 198 N. C., at p, 221: “The note does not recite a special consideration; it was given Tor value received’ and was 'secured by a deed of trust on real estate.’ The makers were primarily liable jointly and severally. C. S., 458, 3041, 3166; Roberson v. Spain, 173 N. C., 23. The unity of person is an incident of the estate created by the conveyance to Black and his wife; it is not incident to the note.” The defendants are .married women and sui juris, under our statute, and can contract as if unmarried, with certain exceptions. Having signed the negotiable note, they were joint makers and are deemed to be primarily liable thereon, and in an action on the note the burden is on the defendants to allege and prove any matter in release. In Royal v. Southerland, 168 N. C., at p. 406-7, it is written: “By the enactment of the Martin Act, conferring the capacity to contract on married women as if they were femes sole, when she signs and delivers a note, though it may be as surety, in reference to the creditor or holder the obligation is hers and not his, and the constitutional provision referred to has no application. It was further contended that his Honor committed error in excluding testimony tending to show certain repre *58 sentations on the part of the husband to the wife as to the effect of putting her signature on the note, but there is no claim or suggestion that these representations were made known to the payee of the note or that he had any part in them. The note is under seal and given for valuable consideration, and, under the circumstances appearing, the representations to the wife by the husband may not be allowed to affect the creditor. Again, it is insisted that error was committed in not allowing the feme defendant to testify that in signing the note and mortgage to secure the same she only intended to pledge her land for the debt, and did not intend to come under any further obligation; but this would be in express contradiction of her written note, and it is well understood that when the entire agreement is in writing and the language is clear and meaning plain, the same may not be contradicted or varied by parol. In such case, and in the language of the Chief Justice in Walker v. Venters, 148 N. C., 388, ‘The written word abides.’ Deering v. Boyles, 8 Kans., 529.” Tice v. Hicks, 191 N. C., 609. In Estes v. Rash, 170 N. C., at p. 342, speaking to the subject, it is said: “We assume, that the defense to the action which is set up by the feme defendant indicated that she intended to show, by parol evidence, that she signed the mortgage on the land of her husband for the purpose of releasing any marital interest she had in the same and not for the purpose of becoming bound for the debt, and, as this varied and contradicted the written contract, it could not be done (Royal v. Southerland, 168 N. C., 405), but the feme defendant should have proceeded beforehand by an action to have the instrument which evidenced a promise to pay the debt corrected or reformed so as to express the true intention of the parties, if it had been otherwise written by their mistake, or by her mistake, induced by the fraud of the other party.” In Wilson v. Vreeland, 176 N. C., at p. 506, we find: “Both Dockery and his wife were liable to the bank and Mr. Long, the accommodation endorser, for all the debt; but as between themselves they were severally liable for one-half. He was not legally bound to his wife for the payment of her half, though he was so bound to the creditors.” For the reasons given, the judgment of the court below is Beversed.