Opinion
7 Div. 965.
May 15, 1919.
Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.
Riddle Riddle, of Talladega, for appellant.
George A. Sorrell, of Alexander City, for appellee.
Section 4497 of the Code provides that "the wife shall not, directly or indirectly, become the surety for the husband." "The statute is founded upon public policy which is to protect the wife's estate as against the influence of her husband or other person, or her own inclination, in respect to subjecting it to her husband's debts." Richardson v. Stephens, 122 Ala. 301, 307, 25 So. 39, 41. It has been liberally construed and zealously applied by the courts for the accomplishment of its obvious design, as our numerous decisions will show. Lamkin v. Lovell, 176 Ala. 334, 58 So. 258; Hanchey v. Powell, 171 Ala. 597, 55 So. 97; Corinth Bk. Tr. Co. v. King, 182 Ala. 403, 62 So. 704; Staples v. City Bk. Tr. Co., 194 Ala. 687, 70 So. 115.
Nevertheless it is clearly settled that the wife cannot invoke the protection of the statute in avoidance of her obligation, unless it was given for the security of a debt, either pre-existing or presently created, for the payment of which the husband is liable, or unless it is given to the husband's creditor, or to some intermediary for his benefit, in substitution for an existing debt of the husband's, which is nominally satisfied by the wife's obligation or by its proceeds. Lamkin v. Lovell, supra; Staples v. City Bk. Tr. Co., supra. In dealing with these transactions, courts look through the form to the substance; but, to be obnoxious to the statute, the substance must, when analyzed, disclose a debt or obligation due from the husband to the person who seeks to enforce the ancillary promise of the wife. If there was no such debt, there can be no occasion for the operation of the statute. In that case, although the loan is made to the wife upon the application of the husband, and the proceeds are intended for his exclusive benefit, and in fact devoted to his exclusive use, the wife's obligation is primary and independent, and does not fall within the inhibition of the statute.
The evidence in this case fails to show that complainant's husband was bound to respondent, either separately or jointly, for the repayment of the loan of $2,000, for which the wife gave her separate and sole obligation to respondent. The burden was on complainant to show that it was her husband's debt, and this burden was not met by showing that he induced her to borrow the money for his benefit. On the contrary, it appears from a letter written by complainant to respondent, after, the latter had filed a suit in ejectment to recover the land, that she considered the loan as having been made to her, and regarded the debt as her own.
In this aspect of the case the relief sought was properly denied.
The allegation that a partial payment made on the note by complainant was credited thereon by respondent at a usurious rate of interest does not charge usury in the contract. Jordan v. Lewis, 2 Stew. 426, 428; Ely v. McClung, 4 Port. 128; Van Bell v. Fordney, 79 Ala. 76. There being no issue as to usury, the trial court properly allowed respondent's claim for interest at the legal rate.
On the evidence before it the trial court did not err in allowing an attorney's fee to respondent for collection of the note, and in taxing complainant with the costs of the suit.
There being no error in the record, the decree of the chancery court will be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.