Scott v. Taul

HARALSON, J. There can be no doubt but that a married woman may, with the assent or concurrence of her husband expressed in writing, execute a note payable in bank, or a bill of exchange, as well as any other contract into which she is authorized to enter by the statute. — Code of 1886, § 2346. She may contract with her husband, subject to the rules of law as to contracts by and between persons standing in confidential relations ; but she can not directly or indirectly become the surety for the husband. — Code of 1886, § 2349. We have recently held that she may convey her land, on an adequate, fair consideration, directly to her husband, and if there was no consideration therefor, an adequate consideration being alleged in the conveyance, it would be good when conveyed by the husband to a bona ficle purchaser for value.—Osborne v. Cooper, 113 Ala. 405. The note in the complaint, having been made payable at a.bauk, was governed by the commercial law. The purchaser of such a paper, in the usual course of business, before its maturity, for a valuable consideration, having no notice of defenses that existed between the original parties, or have subsequently arisen, as we have frequently held, is a bona fide holder for value, and as such, takes the instrument freed from defenses which were available between the original parties.—Brown v. First Nat. Bank of Tuscaloosa, 103 Ala. 123. The complaint avers that the note, before its maturity and the commencement of suit, was sold, assigned and indorsed to plaintiff, bona fide, for a valuable consideration, and without any defect in the same or any defense thereto. If this be true, the defense set up in the 6th plea was not good. When the wife signed this note as co-maker with her husband, there being nothing on its face to indicate that she signed it as a surety, and placed it in the hands of the payees, she armed them with the power to negotiate it to an innocent purchaser for value without notice of defenses, so as to cut off the defense [534] now set up by her, — that she was a mere surety on the note.—Brown’s Case, 103 Ala. 123, supra; First Nat. Bank v. Nelson, 106 Ala. 535; Osborne v. Cooper, 113 Ala. 405, supra. The demurrer to the plea should have been sustained. The fact that the plaintiff was a bona fide purchaser for value of the note sued on before its maturity, was established without any conflict in the evidence, and the court should have given the general charge for him, as requested. It is unnecessary to notice other rulings. Reversed and remanded.