Maddox v. Gormley , 49 Ga. App. 680 ( 1934 )

Guerry, J.

Irrespective of wbetber a wife is or is not jointly liable with her husband on a note secured by a deed to secure debt, the wife, after advertisement by the grantee under the power of sale, of the property described, will be bound by a contract, made by her in consideration of a postponement of the sale, to pay the grantee costs incurred by him in the prosecution of the foreclosure, for the reason that there is a detriment suffered by the grantor, to wit, the withdrawal and postponement of the foreclosure and the extension of time, which is sufficient to furnish a consideration for such a contract. Thornton v. Lemon, 114 Ga. 155 (39 S. E. 943).

Such an agreement may not “vitalize” the original note and deed (see Maddox v. Gormley, 49 Ga. App. 526; Baxter v. Bank of Grantville, 48 Ga. App. 458, 172 S. E. 810), but is, under the decision in the Thornton ease, supra, a valid and enforceable contract, and the court did not err in rendering a verdict thereon. Johnson v. Redwine, 98 Ga. 112 (25 S. E. 924); Golding v. McCall, 5 Ga. App. 545 (63 S. E. 706). A joint note signed by husband and wife is prima facie binding on both parties as principals. A judgment rendered in a suit on such note is binding on the wife and she may not, after judgment, attack it on the ground that she was merely surety for her husband. Wingfield v. Rhea, 73 Ga. 477; Garrett v. Thornton, 157 Ga. 487 (121 S. E. 820). The original note and the security deed in the present case were executed jointly by the husband and the wife. Such a note, signed by the wife, is not, although she signed it as surety, absolutely void; it is merely voidable at her option. Such a plea is personal. Palmer v. Smith, 88 Ga. 84 (13 S. E. 956); Baxter v. Bank of Grantville, supra, and cit. In Jones v. Harrell, 110 Ga. 373, 376, (35 S. E. 690), Chief Justice Simmons said: “The assumption by a wife of her husband’s debt is not immoral, nor prohibited by statute, nor, as far as we have been able to ascertain from an investigation of our reports, against public policy.” A separate agreement by the wife' to pay costs and attorney’s fees, made without raising the question of suretyship, on the consideration of withdrawing the property from sale under the power should be enforced.

Judgment affirmed.

Broyles, C. J., concurs. MacIntyre, - J-., dissents.