Taussig's Appeal

Per Curiam, The relations of borrowers to the lender are not conclusive of their relations to each other. In this case the borrowers were mother and son, and it may be conceded that on the face of the papers the former was the principal aud the latter only a surety. But the facts as shown by the evidence are all the other way. Both mother and son had interests in a trust estate, the former’s being present and the latter’s future and contingent. The son wanted to borrow money, and on applying for a loan was informed that his security was not sufficient, but that if his mother would pledge her name and interest in the trust estate the loan would be made. The mother consented and the loan was made, both parties signing a judgment note, and each separately executing an assignment of his and her interest in the trust estate with power of attorney to collect from the trustee, etc. On the note both parties were joint obligors, but conceding for present purposes that on the face of the papers the mother became the principal debtor, the situation was open to explanation and the evidence makes it clear beyond all doubt. The son, not the mother, wanted to borrow the money, the lender refused to make the loan to him, but as the mother had an interest in the trust estate which made him willing to lend on her credit, he put her in the position of primary debtor and made the loan. As be [64] tween, him and the borrowers the relation was thus made conclusive, and it may be conceded that, prima facie, that was the relation of the borrowers between themselves. But the evidence is overwhelming that the real relations were entirely different. As already said the son wanted the loan, he applied for it himself, and failed to get it. Then his mother pledged herself for it, the loan was made and the son got the money. As between themselves he was the principal debtor and the mother only a surety in the whole matter. The learned auditor below gave too much weight to the mere form of the transaction, in disregard of the convincing evidence of its actual character. Decree reversed and record remitted, with directions to allow the claim of appellants.