
    Edwards v. Citizens Savings Bank of Paducah.
    (Decided June 17, 1932.)
    BEN S. ADAMS for appellant.
    J. D. MOCQUOT for appellee.
   Opinion op the Court by

Judge Rees

Affirming.

Tbe Citizens’ Savings Bank of Padncab sued Mrs. Georgia Edwards ori a note for $1,550 dated December 1, 1930, payable to it and executed by ber. She defended on the ground that she was a married woman and tbe note was a renewal of a note which she bad previously executed to tbe plaintiff as surety for ber husband, A. G. Edwards. Subsequent pleadings completed tbe issues, and on the trial of the case the jury returned a verdict in favor of the plaintiff.

It appears that the first note was for $3,100, was executed on September 19, 1921, and was signed by appellant as principal and by her husband, A. G. Edwards, as surety; $950 of United States government bonds ■owned by A. G. Edwards were attached to the note as collateral security. It was due 90 days after date and was renewed regularly thereafter. The government bonds were sold and the proceeds credited on the note .and other payments were made from time to time which reduced the principal to $1,550. A. G. Edwards signed as surety every renewal note except the last one. On the day the first note was executed the bank entered on its books to appellant’s credit, $3,052.88; that being the amount of the note less discount. On the same day she drew a check against this account for $3,052.88 in favor ■of the Gus Edwards Motor Sales Company and this check was paid by the bank on September 20,1921. A. G. Edwards, husband of appellant, was then doing business as the Gus Edwards Motor Sales Company.

Appellant testified that she went to the bank with her husband and at his request on the day the first note was signed and met Mr. Budy, the president of the bank, who wanted her to execute the note in order to pay off a loan which the bank had made to her husband or the Gus Edwards Motor Sales Company about three years before. She executed the note for that purpose and signed a cheek in the presence of Mr. Budy payable to the Gus Edwards Motor Sales Company and delivered it to her husband. Mr. Budy denied that such a conversation ■occurred, but testified that he made the loan to Mrs. Edwards without any knowledge as to what she intended to do with the proceeds of the note. Charles Gockel, cashier of the bank, testified that at the time the first note was executed A. G. Edwards had no account in the bank and neither he nor the Gus Edwards Motor Sales Company was indebted to the bank.

Mrs. Edwards offered her husband as a witness in her behalf and his testimony was heard out of the hearing of the jury. The court ruled that his testimony was not competent but that it might be treated as an avowal. He testified that on September 19, 1921, he was engaged in the automobile business under the name of the Gus Edwards Motor Sales Company and that he was then indebted to tbe Citizens’ Savings Bank in tbe sum of about $3,100, and that be bad owed tbe bank tbis amount for about three years. He stated that Mr. Rudy told him that tbe directors of tbe bank bad decided they did not want to carry bis note any longer and that tbe bank would not renew it unless bis wife signed tbe renewal note. He took bis wife to tbe bank, executed tbe note dated September 19,1921, and with the proceeds took up. bis note in tbe bank.

Section 2127 of the Kentucky Statutes provides that no part of a married woman’s estate shall be subjected to tbe payment or satisfaction of any liability upon a contract made after marriage to answer for tbe debt, default, or misdoing of another, including her husband, unless such estate shall have been set apart for that purpose by deed of mortgage or other conveyance. Under this section a married woman may borrow money just as a single woman, but she cannot become a surety and the courts will not permit an evasion of the statute of which tbe lender has knowledge. She may borrow money for tbe use of her husband, but if tbe transaction is merely a subterfuge to secure tbe payment of a debt of her husband to the lender, she will loe treated as a surety- and relieved from liability. Some of tbe cases in which section 2127 of the Statutes has been considered are: Allen v. Wireman, 243 Ky. 156, 47 S. W. (2d) 928; Simmons v. Maxey, 242 Ky. 728, 47 S. W. (2d) 530; Scott v. First National Bank, 221 Ky. 297, 298 S. W. 949; Bogie v. Nelson, 151 Ky. 443, 152 S. W. 250; Swearingen’s Executor & Trustee v. Tyler, 132 Ky. 458, 116 S. W. 331; H. C. Hines & Co. v. Hays, 82 S. W. 1007, 26 Ky. Law Rep. 967.

In the instant case there was a conflict in tbe evidence. If tbe facts were as claimed by appellant she was merely a surety, but if tbe facts testified to by tbe officers of the bank are true she was the principal on the note and liable. Tbe issue was sharply defined-and was submitted to the jury in a proper instruction. Tbe only question presented on tbis appeal is tbe correctness of tbe court’s ruling in sustaining an objection to the testimony of appellant’s husband, and the solution of tbis question depends upon whether or not her husband was a competent witness under section 606 of tbe Civil Code of Practice. That section provides that neither tbe husband nor his wife shall testify for the other except in certain-actions. The only exceptions to the general exclusions which are pertinent to this inquiry are as follows: (1) “Except in actions which might have been brought by or against the wife, if she had been unmarried, and in such actions either, but not both, of them may testify.” (2) “And except that when a husband or wife is acting as agent for his or her consort, either of them may testify as to any matter connected with such an agency.” Under the first exception either may testify, but not both, and where the wife is a party to an action and testifies her husband is precluded. She has her election either to testify herself or to use her husband as a witness, and if she elects to testify in her own behalf her husband is rendered incompetent as a witness for any purpose. Combs v. Roark, 206 Ky. 454, 267 S. W. 210; Petrie v. Winn, 187 Ky. 797, 220 S. W. 1072; Baskett, Nichols & Norment v. Rudy, 186 Ky. 208, 217 S. W. 112; Brady v. Equitable Trust Co., 178 Ky. 693, 199 S. W. 1082; Weber v. Lape, 145 Ky. 769, 141 S. W. 67; Walker’s Assignees v. Walker (Ky.), 114 S. W. 338.

Under the second exception, when either spouse is acting as agent for the other each may testify as to facts •of which the other has no knowledge, but both may not testify as to facts that occur when both are present. Butler’s Assignee v. Butler’s Administratrix, 227 Ky. 67, 11 S. W. (2d) 978; Leigh v. Citizens’ Savings Bank, 102 S. W. 233, 31 Ky. Law Rep. 251; Logsden v. Stern, 117 Ky. 217, 77 S. W. 927, 25 Ky. Law Rep. 1649.

Appellant cites People’s Bank v. Baker, 238 Ky. 473, 38 S. W. (2d) 225, in support of her contention that her husband was a competent witness. In that ease no objection was made to the husband’s testimony and it was held that the question could not be raised for the first time in this court, but it was further said that the husband may testify for his wife as to facts not within her knowledge although she testifies also in the case; but this statement was made in reference to a ease in which the ■question of agency was involved as a reference to the cases cited in its support will disclose. Logsden v. Stern, supra, was cited, and the opinion in that case points out ■clearly the conditions under which both the husband and wife may testify.

In the instant ease the husband, under the appellant ’s theory of the case, was not acting as her agent, but was acting for himself, and that being true, under the authorities, supra, lie was not a competent witness in his wife’s behalf after she had testified. If it be conceded that he was acting as her agent in the matter, the agency did not begin until he took her to the bank to execute the note, and she testified as to all facts occurring thereafter of which her husband had knowledge.

The court did not err in refusing to permit A. G-. Edwards to testify, and the judgment is accordingly affirmed.  