| S.C. | Oct 12, 1888
Lead Opinion
The opinion of the court was delivered by
This was an action to foreclose a mortgage. It seems that the defendant, Savannah M. Smith, is a married woman, the wife of W. G. Smith, and being desirous of raising $1,000, she executed a bond and mortgage of a house and lot, her separate property, to the plaintiffs. The money was to be advanced to her as she might need it. The issues of law and fact were referred to the master, W. W. Humphreys, Esq., who, among other things, found the following facts: “That on February 18, 1885, Savannah M. Smith executed her bond to the plaintiffs in the sum of one thousand dollars, to be paid on or before November 15, 1885, with interest from the date thereof, and that in said bond she expressly authorized and empowered W. G. Smith (her husband) to use the said advances in his name and business as the true and lawful attorney of the said Savannah M. Smith; that at the same time the said Savannah M. Smith, to secure the payment of said bond, executed her mortgage covering the premises described in the complaint, to wit, house and lot in Honea Path, which was her separate estate, and
It seems that W. G. Smith arranged with the plaintiffs that he would ship them, towards payment of the advances, one hundred bales of cotton, and “in case he failed to ship that amount, to pay a commission of $1.25 for every bale so short, which amount the plaintiffs were authorized to charge against him ; that only 31 bales were shipped, and the proceeds of the sale properly credited; but that the commissions of $1.25 per bale on the shortage of 69 bales, amounting to $86.25, were added to the advances, making the debt of the defendant, Savannah M. Smith, amount at the time of the report to $925.98. The master reports “that Greig & Matthews have charged in their account $36.25 commissions or shortage on failure to ship sixty-nine bales of cotton, and interest on all together, $84.46, and their account shows a balance due thereon of $925.98.” Upon this state of facts the master reported that at that date, February 11, 1887, the debt of the defendant, including $86.25 commissions or liquidated damages charged for shortage in shipping cotton, -was $925.-98; and that to enforce the payment of this sum and interest the plaintiffs were entitled to foreclose their mortgage on the house and lot of the defendant, Savannah M. Smith.
The defendant excepted to this report, and the cause coming on to be heard by Judge Fraser, he concurred with the master in his conclusions both of law and fact, and confirmed the same. From this decree the defendant appeals to this court upon the following exceptions : “I. Because his honor erred in sustaining the master’s report as to his findings and conclusions of law. II. Because he erred as a matter of law in holding that defendant was liable on said note and mortgage. III. Because he erred in holding that the credits or payments made by W. G. Smith, agent, did not operate as a legal satisfaction of the bond and
The papers show, the proof confirms, and the master and judge found that not only the contract, but the bond and mortgage also, were made and executed by the defendant, Savannah M. Smith, for and on behalf of herself alone ; and that her husband, W. G. Smith, had no connection whatever with the transaction, except as “her true and lawful attorney.” Under these circumstances there can be no doubt that the defendant, Savannah M. Smith, although a married woman, had the same power to contract with reference to her separate estate “as if she "were unmarried.” See the recent cases of Fant v. Brown (post, p. ; 6 S.E., 937" court="S.C." date_filed="1888-07-05" href="https://app.midpage.ai/document/fant-v-brown-6676722?utm_source=webapp" opinion_id="6676722">6 S. E. Rep., 937), and Booker v. Wingo (ante 116; 7 S.E., 49" court="S.C." date_filed="1888-07-05" href="https://app.midpage.ai/document/booker-v-wingo-6676637?utm_source=webapp" opinion_id="6676637">7 S. E. Rep., 49).
The third exception complains that the credits or payments made by the husband, W. G. Smith, were not allowed to operate as a legal satisfaction of the bond and mortgage. There being no special instruction's on the subject, the plaintiffs had the right to apply these credits so as “to leave the balance at the foot of the account to constitute the mortgage debt.” Williams & Co. v. Vance & Moseley, 9 S. C., 349, and the authorities there cited.
The fourth exception alleges error in the ruling “that the $86.25, commissions or shortage in shipment of sixty-nine bales of cotton was an ‘advancement’ to, and embraced in, the contract of defendant, and in making her liable therefor.” As we understand it, a married woman is only liable for what is clearly her own debt, contracted freely and voluntarily for purposes of her own, and in reference to her separate estate. It appears here that the bond states, “W. G. Smith is empowered and authorized to use the said advances in his own name and business as her true and lawful attorney ;” and that the mortgage says, “This mortgage is given for the purpose of securing advances to me, through my husband (agent), W. G. Smith, and in his own name.” It thus appears that the wife did not agree to be responsible for anything but “advances;” that the husband’s agency
The judgment of this court is, that the judgment of the Circuit Court, with the modification herein indicated as to the alleged shortage in the delivery of cotton, be affirmed.
Concurrence Opinion
(concurring for the reasons stated in the following separate opinion): While it has been fully and finally settled by the case of Aultman & Taylor Co. v. Rush (26 S. C., 517) and others of that class, that, since the act of 1882, a married woman has no power to bind either herself or her separate property, in any form, for the payment of the debts of another ; yet it is equally well settled that she has full power to make any contract with reference to her separate estate, and may, by mortgage or otherwise, subject such estate to liability for the performance of such contract. This being so, I see no reason why a married woman having separate property may not, with a view to increase such property, engage in business for herself, and contract debts or obtain advances for the purpose of carrying on such business, and pledge her separate property for the payment of the same. If she has the power to carry on such business personally, it is clear that she may also conduct it through an agent: and this, it seems to me, was precisely the nature of the transaction which is here brought in question. It was expressly stipulated, both in the bond and the mortgage, that the advances were to be made to her through her husband “as her true and lawful attorney” or agent, and accordingly the accounts on the books of plaintiffs were so kept: the charges were not made against the husband, but against him as attorney for the. wife, and the testimony shows that when money was sent by express it was directed “to W. G. Smith, attorney for S. M. Smith, and so receipted for by him,” as appears from the express
If a married woman, either personally or through an agent, obtains advances under a representation made in the instrument intended to secure such advances, that the same are to be used in carrying on business for .herself, whether the same is to be conducted by herself personally, or by an agent, she is estopped from afterwards denying such representation, as it would be a fraud upon the person making the advances; and surely the faithlessness of her agent, in misapplying the money advanced, cannot affect the rights of the person advancing the money, without it is shown that he participated in such misapplication. Where, however, a married woman executes an obligation to pay the debt of another, her intention to bind her separate property, though expressed in the clearest and strongest terms, does not estop her from disputing her legal liability for the payment of such debt, for the simple reason that the law has denied to her the power to contract such a debt, and therefore the expression of her intention to do that which she has no power to do, cannot bind her. But inasmuch as she has been invested with power to contract with reference to her separate estate, her representation that a given debt is of that character will estop her from after-wards disputing that fact, unless it be shown that the creditor knew, at the time the debt was contracted,' that such representation was not true, for in that case the creditor would not be misled, and there would, therefore, be no ground for the estoppel.
As to the application of the payments, I agree to what is said in the leading opinion. So also as to the claim for commissions on the cotton not shipped. That liability arose under a separate and independent contract between the husband, in his individual capacity and not as agent of his wife, and the plaintiffs; and I am unable to discover anything in the case to connect the wife
Dissenting Opinion
dissenting. A married woman has the power under the constitution to “bequeath, devise, or alienate her property, real or personal, held by her at the time of her marriage or acquired thereafter, either by gift, grant, inheritance, devise, or otherwise,” and which has become her separate estate under said-constitution. She has also the power under an act of the general assembly (section 2037, General Statutes) to purchase any species of property in her own name, and to take proper legal conveyances therefor, “and to contract and be contracted with as to her separate property in the same manner as if she were unmarried” — these latter words being the words of the act, at the time of the transaction involved in the case before the court. Her common law disabilities had not been removed, except to the extent above, when the note and mortgage below were executed.
Now, it does not seem to me that the note and mortgage in question was either a “devise, bequest, or alienation of her separate estate” under the constitution ; nor was it a purchase of property by her in the sense of the act authorizing her to purchase any species of property. Nor was it a contract under the act and the decisions of this court with reference to her separate estate. I find it impossible, therefore, to concur in this opinion. The transaction below appears to me to be nothing more than a borrowing, in substance, of money by the husband writh his wife as security, or rather advances made to the husband for his own benefit, and upon the credit of the wife’s separate estate. And the effort here, in truth and in fact, is to make the wdfe’s separate estate liable for the debt of the husband, the very thing which the constitution sternly inhibits.
Judgment modified.