Foster v. . Davis

AlleN, J. In our opinion there is ample evidence to sustain the finding of fact that Mrs. Walser executed the mortgage conveying her- *544 interest in the land of ber father as security for the debt of her husband. The evidence shows that the mortgage secures a note for $625; that the note was for the purchase price of two gray mules; that the mules were bought by the husband at Lexington in the absence of the wife; that the husband signed an instrument at Lexington promising to pay $625 for the mules, in which the title was retained, and that the parties then went to the home of Mrs. "Walser, 20 miles distant, and she and her husband signed another note for $625 of the same tenor as .the promise to pay of the husband, and representing the same debt, and then executed the mortgage. The husband testified: “I bought a pair of gray mules from Eoy & Shemwell.” ... “I was at work in Lexington when I made the trade, and my wife knew nothing about it.” And the subsequent conduct of Foy & Shemwell in agreeing that the husband might trade the gray mules for the black ones without the knowledge or consent of the wife was a clear recognition of the ownership of the gray mules by the husband, that the trade was his, and the debt, in whatever form evidenced, his debt. If so, the wife promised to pay the debt of her husband when she signed the note, and was a surety, and it was competent to prove the relationship by parol as between the parties, although she appeared to be a principal on the face of the note. Williams v. Lewis, 158 N. C., 574. The same relationship would also have existed, so far as the property conveyed in the mortgage is concerned, if she had not signed the note, as “It is settled by abundant authority that ‘where a husband mortgages his property for his debt, and in the same mortgage the wife conveys her own separate property as security for the same debt, her property so conveyed will be treated in all respects as a surety , . . and will be discharged by anything that would discharge a surety or guarantor who was personally liable.’ 1 Brandt on Suretyship, par. 32; Cross v. Allen, 141 U. S., 528; Spear v. Ward, 26 Cal., 659; Gahn v. Niemcewieg, 11 Wend., 312; Bank v. Burns, 46 N. Y., 170; Bishop Law of Married Women, 604; Jones Mortgages, 114; Gore v. Townsend, 105 N. C., 228; Purvis v. Carstarphen, 73 N. C., 575” (Hinton v. Greenleaf, 113 N. C., 7), and the same principle applies when no part of the husband’s property is covered by the mortgage, and it simply conveys the property of the wife to secure the debt of the husband. Smith v. Loan Assn., 116 N. C., 73-102; Edwards v. Ins. Co., 173 N. C., 617. We must then deal with the wife and her property as a surety, and it is not contended that forbearance or extension of time to the principal does not discharge the surety (Forbes v. Shepherd, 98 N. C., 115; Chemical Co. v. Pegram, 112 N. C., 620), and that there has been an exten *545 sion of time and a release of securities Held by the principal without the consent of the surety seems clear. The original debt of the husband was $625, the price of the gray mules, and there was only one debt,, although two papers were executed, each in the sum of $625. These papers were due 1 October, 1915, and on 30 August, 1915, the husband traded the gray mules to Foy & Shem-well for a pair of black mules, agreeing to pay $150 boot money, and executed his note to Foy & Shemwell for $775, in which was included the debt of $625, payable 15 November, 1915. ; Again on 4 February, 1916, the husband, with the consent of Foy & Shemwell, traded the black mules to one Jones for a pair of bay horses and $200, and on the same day the husband paid said sum of $200 to' Foy & Shemwell and executed a new note for $610.94, payable 15 March, 1916, which included the balance due on the debt of $625. These transactions were without the knowledge or consent of the wife and extended the time of payment to the principal from 15 October, 1915, to 15 November, 1915, and then to 15 March, 1916. >. - If the principal had been sued on the note he and his wife signed, he could have successfully defended upon the ground that the debt was' covered by the new notes, and that the creditor had agreed not to demand payment until the notes became due. We therefore conclude' there is no error in the ruling of his Honor holding that there has been an extension of time, and that this discharges the surety and the land. The case of Fitts v. Grocery Co., 144 N. C., 463, is easily distinguishable from this, as in that case the mortgage executed by the wife was for the purpose of giving continuing credit to the husband, and the monthly transactions were such as were contemplated by the parties. Affirmed.