March, Price & Co. v. Clark

The defendant, Mrs. E. A. Clark, appears on the paper sued upon as drawer and indorser. Welch & Bacon are primarily liable; she is only secondarily liable. It is> a conceded fact in the case that the defendant is a married woman.

*754The statute of Georgia (Code of 1873, § 1783) is as follows:

“The wife is & feme sole as to her separate estate, unless controlled by the settlement. Every restriction upon her power in it must be complied with; but while the wife may contract, she cannot bind her separate estate by any contract of suretyship, nor by any assumption of the debts of her husband; and any sale of her separate' estate, made to a creditor of her husband in ex-tinguishment of his debts, shall be absolutely void.”

Under this statute, if this draft was made to pay a debt of defendant’s husband, the draft is not merely voidable, but void. It is a contract inhibited by the statutes of this state.

It was contended for the plaintiffs that the defendant was estopped from denying the recital therein, that it was furnished her to make her crops, etc., especially as against bona fide holders of the paper. If the contract were not void under the statute cited the court might so hold, but in view of the construction now adopted of that statute, the court is compelled to decide that defendant may offer evidence of the consideration as alleged in the plea. This being a Georgia contract must be governed by the law of Georgia; and the consequences above stated result from the provision of the case.

The court will admit the evidence and submit the disputed questions of fact to the jury.