Bartington v. Bradley

Merrick, C. J. This case was before us in 1859 on an appeal by plaintiff, and was remanded for further x>roeeedings. The xilaintiff and intervenor had judgment against one of the defendants only, and they (xilaintiff and intervenor) appeal a second time. - The suit is brought against the sureties only uxion two promissory notes signed by J. P. Wall as principal, and Alfred Bradley, Ann M. Wall, and D. W. Wall as sureties. Judgment was rendered in favor of xilaintiff and intervenor, as just said, against Bradley and in favor of the defendant Ann M. Wall, on the ground that she was a married woman and could not bind herself conjointly with her husband for a debt due by the community during the existence of the marriage. D. W. Wall was not made a party, except through a curator ad hoc, he being an absentee. The notes were given for property bought by J. P. Wall at a probate sale. The case, therefore, presents the legal question, whether the wife can bind herself conjointly with her husband as surety for another ? On the part of the plaintiff our attention is called to the cases of Far [311] rell v. Yoe et al., 9 An. 903, and Roberts v. Wilkinson, 5 An. 307, wherein it was held that a married woman might, with the authorization of her husband, become a surety for a third person. These cases, it -must be observed, were decided upon the ground that the debt for which the wife contracted the suretyship was neither the debt of the community nor of the husband, and therefore, the husband could have no interest in subjecting the wife’s estate to the payment of the surety-debt for the advantage of the community or of his owu estate. In the case at bar, during the existence of the marriage, the husband and wife conjointly contracted the obligation of suretyship. The husband became by the contract interested in making his wife’s separate estate responsible for the debt in order to relieve his own or the community. The case therefore, is not only within the letter, but the spirit of Article 2112 C. 0., which says the wife, whether separate in property by contract, or judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage. The judgment of the lower court, therefore, rests upon the x»'ecise and clear language of the Code, and cannot be disturbed. Judgment affirmed. Voobhies, J., absent.