Hawkins v. Kimbrell

Atkinson, J. A married woman “cannot bind her separate estate by anjr contract of suretyship.” Civil Code (1910), § 3007. Not can she make a “contract of sale . . as to her separate estate with her husband, . . unless the same is allowed by order of the superior court of the county of her domicile.” § 3009. But she can “give property to her husband,” though “the evidence to support it must be clear and unequivocal, and the intention of the parties must be free from doubt.” § 3010. In National Bank of Athens v. Carlton, 96 Ga. 469 (23 S. E. 388), it was held: “If a married woman conveyed land to her son for the purpose of enabling him to pledge it to a third person as security for a debt due, or to become due, to that person by the son, and this was a mere colorable transaction growing out of a scheme suggested by the creditor in order to make her in fact a surety for the son’s debt, although she did not become nominally bound therefor, the [763] transaction was, as to her, contrary to law and void. If, on the other hand, there was no element of suretyship in the transaction, and the mother deliberately conveyed the land to the son simply to enable him to secure thereby his own debt, she was bound by her deed.” This rule applies in cases of gift to a husband as well as to a son, as the wife can legally make a gift of her separate estate to either. The meaning of the rule is, that if the gift is not induced by fraud or duress upon the part of the donee or creditor, and is intended to be an absolute gift of the property, it will be valid and binding upon the wife, notwithstanding that the purpose for which it was made was to enable the son or husband to secure his debt; but that it will not be valid and binding if the gift was intended to be only for the occasion, and the property to be returned to the donor after the debt had been satisfied. The intention of the donor may be found both in the deed and in extraneous evidence as to the circumstances under which the donation was made, just as the nature of a transaction may be looked to in cases of fraud. In the recent ease of Jackson v. Reeves, 156 Ga. 802 (3) (120 S. E. 541), it was held: “A wife has the right to repudiate a colorable scheme or device by which she was induced by the creditor and her husband to assume the previous debt of.her husband to such creditor without any consideration flowing to her, no matter how the true inwardness of such illegal and void transaction had been concealed.” On its face the deed is expressly a deed of gift, without any reservation or suggestion that its purpose was to enable the donee to secure his debt or that the property was to be returned to the donor after the debt was paid. The extraneous evidence tended to show that the purpose of 'the wife was to enable her husband to secure his existing debt and a loan of additional money. This much was within her power, notwithstanding the creditor was present and participated in the conversations with the wife leading up to execution of the deed. But this is not all. There was also extraneous evidence to the effect that the creditor stated to the wife that the husband “owed him a little money, and . . wanted to borrow a little more,” and asked the wife whether, if he (the creditor) “should lend him the money,” the wife would “make the deed over to” the husband. The wife replied that “she did not know just at that time; she would have to think the matter [764] over.” At the same time the husband stated to the wife that “he wanted to borrow some more money, and wanted” the wife “to make deeds to him in order that he might do so.” Other testimony was to the effect that the loan described in the'deed was “all the land” the wife owned. There was other testimony substantially to the same effect, but that which is stated above is sufficient to indicate all the extraneous evidence that could throw light on the question as to the intention of the donor. The burden of proof was on the plaintiff, who was seeking to cancel the deeds. The language quoted above as setting out the conversations between the parties is somewhat equivocal, and might indicate an intention upon the part of the wife to make an absolute gift to the husband, or only to “make a deed to her property” in order that he might use it as a pledge for his debt. When this is considered in connection with the further fact that the land in question was all the land owned by the wife, it became a question for the jury to say whether or not the transaction was a bona ñde gift to the husband, or a mere colorable scheme to enable the husband to pledge the wife’s property as a security for his debt. In this view it was erroneous to direct a verdict for the defendants. Judgment reversed. All the Justices concur.