Bank of Eufaula v. Johnson

Evans, P. J. (After stating the foregoing facts.) 1. The evidence disclosed that at the time Mrs. Johnson executed the mortgage she resided with her husband in Eufaula, Ala. The plaintiff is an Alabama corporation, and the transaction out of which this controversy arose occurred in the State of Alabama. Accordingly, the validity of the contract depends upon the law of [793] that State. The statute of Alabama declares that “the wife shall not directly or indirectly become a surety for the husband.” Code of Alabama, § 4497. The contention of the bank is that the transaction amounted to an independent loan to Mrs. Johnson, and that she could use its proceeds for the payment of her husband’s debt; which is allowable under the laws of Alabama. On the other hand, it is the contention of the plaintiff that although the transaction may have the superficial appearance of a loan to her, the evidence disclosed that it was a colorable transaction, and that the ostensible loan to her was but a device to conceal the real transaction between the bank, her husband, and herself. It is permissible, under the law of Alabama, for a married woman to borrow money and to give the same to her husband for the purpose of paying his debts. Sample v. Guyer, 143 Ala. 613 (42 So. 106). On the other hand, that same distinguished court has held that “no superficial appearance will be permitted to lead the court away from the true inwardness of the case. . . The fact that it is the creditor of the husband that advances the money to the wife to pay him her husband’s debt, or that he accepts the obligation of the wife in discharge of the debt of her husband, or takes her as surety for her husband to better secure a loan made to him, is the essential thing that places his relation to the transaction in a different attitude from that of the person who, as an original business proposition, lends the wife money to do with as she pleases, and who derives no benefit or advantage, except such as grows out of the interest or profit he may secure from the loan of the money. When the wife executes her note to take up the debt of her husband, or borrows' from the creditor of the husband on her own obligation the money, and hands it to him to pay her husband’s debt, she is, in the meaning of the statute, assuming the debt of another, the same as if her name was signed as surety to a writing promising to pay the debt. The form of the transaction will not be allowed to defeat the statute, when the substance is an evident attempt to evade it.” Lamkin v. Lovell, 176 Ala. 334, 339, 340 (58 So. 258). The statute of Georgia on this subject is very similar to that of Alabama, and there is a striking concordance in the decisions of the courts of these States in the interpretation of the respective statutes. White v. Stocker, 85 Ga. 200 (11 S. E. 604); Freeman v. Mutual Building and Loan Association, 90 Ga. 190 (15 S. E. 758); Johnson v. [794] Leffler Company, 122 Ga. 670 (50 S. E. 488). Complaint is made of several excerpts from the charge of the court, submitting the question as to whether the transaction was an independent loan to the wife, or was intended as an obligation of suretyship for her husband under the facts as disclosed at the trial. We think this issue was fairly submitted to the jury. 2. It has been frequently decided that objections to the allowance or rejection of amendments to pleadings are the subject-matter of direct exceptions, and have no place as grounds of a motion for-new trial. Carswell v. Smith, 145 Ga. 588 (89 S. E. 698). 3. The motion for new trial contains numerous grounds. We have carefully examined them, and no new or novel question is presented, and it would not be profitable to' discuss each one seriatim. Suffice it to say that, considered either singly or collectively, no sufficient ground for new trial is made to appear. The verdict is supported by the evidence. Judgment affirmed. All the Justices concur.