Knox v. Harrell

Hill, J. 1. The rule relating to sequestration of witnesses does not apply when the witness is a party, although there may be several parties on one side and all are intended to be introduced as witnesses, as all have the right to remain in court during the entire trial. Georgia R. Co. v. Tice, 124 Ga. 464(3) (52 S. E. 916, 4 Ann. Cas. 200). 2. Where letters which would be admissible in evidence are lost or destroyed, their contents are provable by parol, after proof of loss or destruction. Civil Code (1910), § 5829; Marietta Savings Bank v. Janes, 60 Ga. 286(2). 3. Though, a wife may contract as a feme sole, she cannot bind her separate’ estate by any contract of suretyship or by any assumption of the debts of her husband, nor sell her separate property to pay her husband’s debts. Civil Code (1910), §§ 2993, 3007. A note made by the wife for a debt of her husband and indorsed by him, where the payee of the note knows this fact at the time of its execution, cannot be collected from her by the payee. A deed executed by the wife to the payee of such a note does not bind her separate estate. This is true although the note and the deed were made by the wife to secure a loan contemporaneously made to the husband. Gross v. Whitely, 128 Ga. 79 (57 S. E. 94) ; Klink v. Boland, 72 Ga. 485. 4. Whether a transaction between husband and wife and a third person, in which the wife executed her note, with her husband as indorser, payable to the third person, ostensibly in payment of stock in a corporation held by the third person, the certificate therefor being issued to the wife and indorsed by her and delivered to the holder of the note as .collateral security, was a bona fide transaction by the wife for her own benefit, or was only a colorable scheme, entered into knowingly, for the purpose of paying the husband’s debt or becoming his security, were questions for determination by the jury. The evidence in the instant case was amply sufficient to support the defense set up by the wife, that the entire transaction between the plaintiff and herself and her husband was purely colorable in so far as she was concerned, and constituted a scheme and device and an attempt on the part of the plaintiff to make her surety for her husband and to bind her separate estate to pay her husband’s debts. The charge of the court was a full, accurate, pertinent, and exhaustive statement of the law applicable to the issues made by the pleadings and evidence. The judgment refusing another trial to the plaintiff was correct. Judgment affirmed. Stephens, J., concws. Jenhi/ns, P. J., dissents.