property will not be charged by a joint and several note executed by her and her husband in payment of his debt, where it is provided by statute that her property shall be exempt from seizure in any way for such debts without "her consent," as the execution of the note is not such consent as is required by law."

§ 122. Where wife signs as surety-When no defense.— Under the laws in force in some jurisdictions a married woman can not defeat a recovery on a note on the ground that she signed it as surety. So under the Oklahoma statute, which provides that "either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might, if unmarried, subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other, as defined by the title on trusts," a wife who joins with her husband in executing a promissory note for the latter's debt will be bound thereby.

10

And

a similar rule has been affirmed under like statutes in North Dakota1o and in South Dakota.11 So in West Virginia it has been decided that where a married woman executes a bond as surety for her husband's debt it will be binding on her separate estate under the law of 1893, and coverture is no bar to an action thereon.12 And under the statute in Missouri, permitting a married woman to contract as a feme sole, 13 a recovery may be had against her on a note of her husband's which she signs as surety.1 In Canada, under the Married Woman's Act of 1872, a married woman will be liable on a note, indorsed by her for the accommodation of her husband, she

S. W. 167. See Crumbaugh v. Postell, 20 Ky. L. 1366, 49 S. W. 334.

7 Gaskin v. Peck, N. B. Eq. Cas. 40, decided under ch. 72, Consol. Stat.

8 Section 2968 of Laws of 1893 (Comp. Stat. 1921, § 6609).

$ Cooper v. Bank of Indian Territory, 4 Okla. 632, 46 Pac. 475.

10 Colonial & U. S. Mtg. Co. v. Stevens, 3 N. Dak. 255, 55 N W. 578, decided under $2590, Compiled Laws. Laws.

11 Colonial & U. S. Mtg. Co. v. Bradley, 4 S. Dak. 158, 55 N. W. 1108, decided under $2590, Compiled Laws. See S. Dak. Rev. Code 1919, § 171.

12 Williamson v. Cline, 40 W. Va. 194, 20 S. E. 917, decided under ch. 3, Acts 1893.

13 Mo. Rev. Stat. 1889, § 6864 (see Rev. Stat. 1919, ch. 64, § 7314 et seq.).

14 Grady v. Campbell, 78 Mo. App. 502. See Sater v. Hunt, 66 Mo. App. 527; Moeckel v. Heim, 46 Mo. App.

7

being possessed of a separate estate, and credit being extended to her husband on the faith of such separate estate and her indorsement in reference thereto.15 Again, where by a judgment of a court, pursuant to statute, a married woman is empowered to “make contracts as a feme sole," the effect is to remove the disability of coverture and gives power to make any lawful contract and render her subject to all the remedies to which she would have been subject if unmarried, and coverture is no defense to her contract binding herself as surety on a note.16 In Nebraska a married woman may become surety for her husband and the extension of time on his past due indebtedness is a sufficient consideration.17 So she has been held liable on such a note, though she personally received no consideration therefor, the contemporaneous loaning of money to her husband being held a sufficient consideration for a note so executed by her pledging her separate estate. 18 Again the circumstances in connection with the execution of the note may be such as to show that she was in reality the principal, or that she received the consideration or that it inured to the benefit of her separate estate, in which case she will be liable in most jurisdictions. So the defense that a note was given to secure a debt of the husband has been held not available, where the latter, who was the owner of the land, was indebted to a third person and an arrangement was made whereby he was to convey such land to his wife, who was to pay a certain sum in cash to him and to give a note to the debtor for the balance of the consideration, the amount of such note being the same as the debt.19 And where a note was given to one holding a mortgage on personalty bought by her husband for the purpose of discharging the lien, she was held liable, it appearing that she did not sign the note as surety for her husband and that the debt which she promised to pay was really contracted by her and not by him.20 So she may be liable where any part of the consideration moved to her or was

15 Frazee v. McFarland, 43 Up. Can. Q. B. 281, decided under 35 Vict. Ch. 160.

16 Hart v. Grigsby, 14 Bush (Ky.) 542. See Skinner v. Carr, 21 Ky. L. 525, 51 S. W. 799; Sypert v. Harrison, 88 Ky. 461, 10 Ky. L. 1052, 11 S. W. 435.

17 Smith v. Spalding, 40 Nebr. 339, 58 N. W. 952.

18 Briggs v. First Nat. Bank, 41 Nebr. 17, 59 N. W. 351.

19 Strickland v. Gray, 98 Ga. 667, 27 S. E. 155.

20 Jones v. Holt, 64 N. H. 546, 15 Atl. 214.

for her benefit.21 Thus a note is not within a statute forbidding a married woman to enter into any contract of suretyship, where it was given in payment of fees for preparing a transcript upon appeal from a judgment against her husband, where it appears that judgments of the wife against her husband will be given a priority in case of a reversal.22 And she has been held liable where she joins with her husband in a note as a partner,23 or where the proceeds were used in the business of a corporation of which she owned the stock.24 And she can not defeat a recovery on a note for money borrowed by her to pay the indebtedness of another unless the transaction was merely colorable and for the purpose of evading the statute forbidding her to become a surety,25 or where the note was given for the purpose of discharging a debt upon property which was in substance her own.26

§ 123. Where wife signs as surety-Bona fide holders.— Some discussion has arisen as to the liability of a married woman to a bona fide holder of a note which she claims to have signed as surety. In most of the states statutes have been passed, as we have already stated, which enlarge the power of a married woman to contract, and in pursuance of which she may, in many cases, execute a note as principal, or even as surety, and it is in those states in which she is disqualified from acting as surety, but in which she may contract as principal that the question has arisen. In such a case it would seem that if she signs a note apparently as a joint. maker, and there is nothing on the face of the paper indicating that she has signed other than as a principal, she can not defeat recovery thereon in an action by a bona fide holder for value and without notice of any defense thereto. So it has been declared that, where a wife signs a note as comaker with her husband, there being nothing on its face to indicate that she signed as surety, and places it in the hands of the payees, she arms them with the power to negotiate

21 Morningstar v. Hardwick, 3 Ind. App. 431, 29 N. E. 929.

22 Morningstar v. Hardwick, 3 Ind. App. 431, 29 N. E. 929.

23 Compton v. Smith, 120 Ala. 233, 25 So. 300.

24 Williams v. Farmers & D. Bank, 20 Ky. L. 1273, 49 S. W. 183.

25 National Bank v. Carlton, 96 Ga. 469, 23 S. E. 388. See Villa Rica Lumber Co. v. Paratain, 92 Ga. 370, 17 S. E. 340.

26 Daniel v. Royce, 96 Ga. 566, 23 S. E. 493.

it to an innocent purchaser for value, without notice of any defense, so as to cut off the defense that she was a mere surety on the note, though the code declares that she can not directly or indirectly become surety for her husband.27 Also, where a wife executes a note jointly with her husband for his debt, she can not, as against a bona fide purchaser of the note,28 or a holder in due course,29 set up the defense of coverture. But the defense of coverture can not be defeated by a bona fide purchaser for value before maturity merely by showing that when he purchased the note he did not know of the Coverture.30 And in Georgia it is decided that the defense of nonliability on the ground that the defendant, a married woman, signed as surety for another, is not available against an indorsee of a note which a married woman signed as joint maker with another to secure the latter's debt, where the indorsee took it for value, before due, in good faith and without notice.31 In other decisions, however, a contrary view is taken. So in Indiana it has been determined. that where a statute declares a contract of suretyship void, a married woman is not estopped from showing that she signed as surety and that the note is invalid as to her, by the fact that the note signed by her and her husband was payable in bank and has passed into the hands of an innocent holder, 32 And it has been determined in Michigan that it will be a defense against a bona fide holder of a note given by a married woman, that such note was given without any consideration to her, but at the request of her husband and to secure his performance of a contract and agreement of purchase

27 Smith v. First Nat. Bank, 5 Ga. App. 139, 62 S. E. 826; Scott v. Taul, 115 Ala. 529, 22 So. 447. See code as to right to contract. Code 1886, § 2349 (Ala. Code 1907, §§ 4492, 4494, 4497). See also, Georgia Civ. Code, § 2488, as to right of married woman to bind her separate estate by contract of suretyship.

28 Davies v. Simpson, 201 Ala. 616, 79 So. 48. See Alabama Code, 1907, $4497, as to suretyship of wife for husband.

29 Birmingham Trust & Sav. Co. v. Howell, 202 Ala. 39, 79 So. 377.

30 T. G. Northwall Co. v. Osgood, 80 Nebr. 764, 115 N. W. 308.

31 Howard v. Simpkins, 70 Ga. 322; Strauss v. Friend, 73 Ga. 782; Laster v. Stewart, 89 Ga. 181, 15 S. E. 42; Strickland v. Vance, 99 Ga. 531, 27 S. E. 152, 59 Am. St. 241. See also, Venable v. Lippold, 102 Ga. 208, 29 S. E. 181.

32 Leschen v. Guy, 149 Ind. 17, 48 N. E. 344, decided under 3 Burns' R. S. (1894), § 6964 (Burns' Ann. Stat. 1914, § 7855).

made by him.33 And in Canada, it is held that, as a married woman can not by law bind herself to pay the debt of her husband, she may show the invalidity of a note executed by her husband in her name for a debt of a corporation of which he is the owner, though he had been authorized by her to sign said note in her name.34

§ 124. Rule as to determining whether principal or surety.— Whether or not a married woman is surety on a promissory note or other obligation is to be determined in Indiana, not from the form of the contract, nor from the basis upon which the transaction was had, but from the inquiry as to whether she received in person or in benefit to her estate the consideration upon which the contract depends.35 And in Kentucky it is decided that although a wife's name may first appear on a note, the court will look to the substance, and if in fact the contract of the wife is an attempted assumption by her of the debt of another, she will not be held liable unless she binds herself in the statutory form.36 So where notes were signed by a married woman as “principal," and by her husband as "surety." these words following the names of the respective payors, and the wife when sued pleaded her coverture in bar of recovery on a debt which she alleged was the debt of her husband and a mere renewal of an old note for money borrowed by her husband of the payee, it was held that she was not bound thereby, the fact that she was designated as "principal" being immaterial.37 In Nebraska, in order to render a married woman liable on such a note, it must

33 Waterbury v. Andrews, 67 Mich. 281, 34 N. W. 575. See Emery v. Lord, 26 Mich. 431; DeVries v. Conklin, 22 Mich. 255.

34 MacLean v. O'Brien, Rap. Jud. Que. 12 C. S. 110.

35 Leschen v. Guy, 149 Ind. 17, 48 N. E. 344; Field v. Noblett, 154 Ind. 357, 360, 56 N. E. 841; Cook v. Buhrlage, 159 Ind. 162, 64 N. E. 603; Andrysiak v. Satkowski, 159 Ind. 428, 63 N. E. 854, 65 N. E. 286; Guy v. Liberenz, 160 Ind. 524, 65 N. E. 185, 188. The statutory provision which invalidated suretyship contracts by married women was repealed in 1919. Sess. Laws, 1919, ch. 40, § 1, p. 90. See Burns' Supp. 1921, § 7855.

36 Crumbaugh v. Postell, 20 Ky. L. 1366, 49 S. W. 334; quoted in Planters Bank & Trust Co. v. Major, 25 Ky. L. 702, 76 S. W. 331.

37 Crumbaugh v. Postell, 20 Ky. L. 1366, 49 S. W. 334. The statute in force when the notes were executed provided that the wife's estate shall not be liable "upon a contract made after marriage, to answer for the debt, default or misdoing of another, her husband included, unless such estate shall have been set apart for the purpose by deed of mortgage or other conveyance," etc. Ky. Stat., § 2127 (Carroll's Ky. Stat. 1922, § 2128).