Building & Loan Ass'n v. Jones

32 S.C. 308 | S.C. | 1890

Lead Opinion

The opinion of the court was delivered by

Mr. Justice McIver.

This was an action to foreclose two mortgages of real estate, to -which the defence was that the contracts which the mortgages were given to secure were made by a married woman, and not being made in reference to her separate estate, were not binding upon her. It seems that Mollie J. Kemp, being a married woman, the wife of E. T. Kemp, holding five shares of the plaintiff association, and desiring to borrow money on said shares, made an application for that purpose to the plaintiff in writing, signed “Mollie J. Kemp, per E. T. Kemp,” in which she proposed to give as security for such loan a mortgage on a certain tract of land, in addition to an assignment of her said shares. Accordingly a bond in the penal sum of one thousand dollars, conditioned for the’payment of the weekly dues on said shares, as well as the weekly interest on the money borrowed, ivas executed by Mrs. Kemp to the plaintiff, and to secure the performance of the condition of said bond she also executed a mortgage on the land in question to the plaintiff. The money was received from the plaintiff’ by E. T. Kemp, whom the evidence showed, and the Circuit Judge found, was the agent of his wife. A part of the money was applied by the husband to the payment of the arrears of weekly dues on his wife’s shares, and the balance appropriated to his own use.

Subsequently Mrs. Kemp made another application to the plaintiff in writing, signed as the previous one, for the loan of the sum of one thousand dollars, proposing to give as security therefor a second mortgage on the same tract of land. -This application having been granted, Mrs. Kemp executed to the plaintiff an ordinary money bond conditioned for the payment of one thousand dollars, and to secure such payment she gave to plaintiff another mortgage on the same tract of land. This money was likewise received from plaintiff by E. T. Kemp, who again applied so much thereof as was necessary to pay the arrears of dues on his wife’s shares, and appropriated the balance to his own use. After the execution of these two mortgages, Mrs. Kemp sold and conveyed the said tract of land to the defendant, who had at the time full notice of the mortgages.

The Circuit Judge held that both of the contracts, the performance of which the mortgages were given to secure, were contracts as to the separate estate of Mrs. Kemp, and were therefore valid and binding, and accordingly he rendered judgment of foreclosure. From this judgment the defendant appeals upon the several grounds set out in the record, which we do not deem it necessary to repeat here. The first, second, fourth, and fifth grounds, in various forms, make the single question, whether the contracts sought to be enforced were such as a married woman was capable of making, under the law as it then stood.

Since the decisions in the cases of Greig v. Smith, 29 S. C., 426 ; Brown v. Thomson, 31 S. C., 436 ; Gwynn v. Gwynn, Ibid., 482 ; Howard v. Kitchens, Ibid., 490; Law v. Lipscomb, Ibid, 504; and Schmidt v. Bean, Ibid., 498, it must be regarded as settled, that where a married woman, either directly or through her agent, borrows money from another, the money so borrowed becomes at once a part of her'separate estate, and her contract to repay the same is a contract with reference to her separate estate, which may be enforced against her ; and that the lender, in the absence of notice to the contrary, has a right to assume that the money was borrowed for the use of the married woman, and she is estopped from denying that fact, unless it is shown that the lender had notice to the contrary. These cases furthermore determine that the husband may, if so authorized by the wife, act as her agent, and that the disposition which may be made of the money after it has been borrowed cannot affect the question. See, also, McCord v. Blackwell, 31 S. C., 125.

Under these well settled principles it is clear that there was no error on the part of the Circuit Judge. The money was borrowed by Mrs. Kemp in her own name, through her authorized agent, and there is not the slightest evidence that the plaintiff had any notice that it was really borrowed for the use of the husband. On the contrary, a part of it was, in both instances, applied to the preservation of the wife’s separate estate, by paying the arrears of dues on her shares; and the fact that the husband afterwards applied a portion to his own use, cannot affect the question, in the absence of any evidence of notice to the plaintiff that the money was borrowed for the use of the husband.

The third ground of appeal presents a question which was not considered or raised in the Circuit Court, so far as appears from the “Case,” and is therefore not properly before us ; but as it is contended that it was raised in the answer, although it is somewhat difficult to discover it, we may say that we do not think there is anything in it. That question is, whether a married woman could become a stockholder in a building and loan association. We do not see why not. Such an association is not a partnership; but like other joint stock associations, it issues certificates for shares of its capital stock, and this certainly is' property which a married woman may purchase and hold. If, as is undoubtedly the case, a married woman may acquire, by purchase or otherwise, shares in the capital stock of a bank or a railway company, we see no reason why, in the same way, she may not own and hold shares in a building and loan association.

The sixth and seventh grounds of appeal are too general in their character, pointing out no specific error, to enable us to consider them. Several other points are mentioned in the argument here which cannot be considered, as there-is nothing in the record upon which to rest them.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.

Mr. Justice McGowan concurred.

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Concurrence Opinion

Mr. Chief Justice Simpson.

I concur in this case, constrained thereto by the recent cases decided by this court herein cited.