Opinion
41002.
DECIDED NOVEMBER 19, 1964. REHEARING DENIED DECEMBER 2, 1964.
Action on note. Cobb Superior Court. Before Judge Manning.
Lipshutz, Macey, Zusmann Sikes, Robert A. Elsner, for plaintiff in error.
Robert T. Efurd, Robert T. Efurd, Jr., contra.
Where a husband and wife sign a note and deed to secure debt jointly as makers for improvements to be made to the realty described in the deed to secure debt and the title, duly recorded, to such property is in the husband, he is the real primary debtor and the wife is in the position of a surety.
DECIDED NOVEMBER 19, 1964 — REHEARING DENIED DECEMBER 2, 1964.
Atlas Subsidiaries of Delaware, Inc. filed suit against Helen N. Davis, formerly Helen N. Christian, to recover on a note made payable to the order of Better Built Construction Company and transferred to the plaintiff. The defendant filed her answer in which she alleged that a contract was entered into between her husband and the payee named in such note, that under such contract improvements were to be made by the named payee to real estate owned by her husband, that she had no interest in such realty, that the named payee took from her husband a note, together with a loan deed and that she signed such note and loan deed as surety. On the trial of the case the defendant testified as to the above facts and the note signed by the defendant and her husband, the deed to secure debt of even date naming the payee in the note as grantee, and referring to a warranty deed recorded in deed book 228 page 577, and a warranty deed covering the same property and naming the defendant's husband as grantee recorded as stated in the deed to secure debt. The jury returned a verdict for the defendant after it was stipulated that the sole question for the jury to determine was whether the defendant signed the note as surety or in some other capacity. Thereafter, the trial court overruled the plaintiff's motion for new trial as amended and error is now assigned on such judgment adverse to the plaintiff.
1. Special ground numbered 2 of the plaintiff's amended motion for new trial assigns error: "Because the court, in its charge to the jury, failed to instruct the jury that it must find from the evidence adduced at the trial of the case, that at the time of the execution of said note, that the payee of said note was dealing with the defendant as a surety." Had the trial court charged as contended for by the plaintiff it would have been tantamount to directing a verdict for the defendant where it was stipulated that the sole issue was whether the defendant had signed the note as a surety or in some other capacity. Obviously, the failure to charge the jury as contended for by the plaintiff was not harmful to the plaintiff.
2. The sole question remaining for decision is whether the verdict for the defendant was authorized. The defendant testified that the note and deed to secure debt were given for improvements to be made to the property owned by her husband. The recorded deed showing the title to such property to be in the defendant's husband was introduced in evidence. Such recorded deed was notice to the named payee in such note that the property was owned by the defendant's husband ( Woods v. Brannen, 208 Ga. 495, 67 S.E.2d 702), and that the improvements were made to his property.
The fact that such note was given for improvements made to the property of the defendant's husband is supported by the indorsement on the back of the note, transferring it to the plaintiff, which read in part as follows: "In consideration of the purchase of this instrument by . . . [plaintiff] . . . , and intending to be legally bound thereby, the undersigned [original payee] warrant, in addition to those warranties implied by law, that all bills for labor and materials have been paid and that no mechanics liens have or will be filed against the premises on account of the work being performed; that the work has been completed satisfactorily. . ."
The defendant testified that she received no consideration for signing the note, that she did so at the request of her husband, and it was not shown that she signed any contract for the improvement of the real estate owned by her husband, or that her husband signed any such contract acting as her agent. Under the decision of Hodges v. Gillespie, 13 Ga. App. 63 ( 78 S.E. 832), and similar cases the verdict was authorized by the evidence. See also Dobbins v. Blanchard, 94 Ga. 500 ( 21 S.E. 215); Smith v. Hardman, 99 Ga. 381 ( 27 S.E. 731); Jones v. Weichselbaum, 115 Ga. 369 ( 41 S.E. 615); and Bozeman v. Brock, 58 Ga. App. 816 ( 200 S.E. 182). The trial court did not err in overruling plaintiff's motion for new trial on the usual general grounds or on the special ground seeking a judgment non obstante veredicto.
Judgment affirmed. Hall and Russell, JJ., concur.