34 S.C. 246 | S.C. | 1891
The opinion of the court was delivered by
On the 20th of February, 1884, Emma Griffin, then being the wife of B. F. Griffin, made and executed a bond, secured by a mortgage on her house and lot in the city of Columbia, payable to S. L. Leaphart, which bond and mortgage was duly assigned by the executors of Leaphart, who had died in the meantime, to the defendant. On the 12th of April, 1889, the assignee, Mrs. Earle, under a power contained in the mortgage, advertised the mortgaged premises for sale, whereupon this action was commenced to enjoin the sale and to have said bond and mortgage declared null and void, upon the ground that plaintiff, being a married woman at the time, had no power to make the contract evidenced by the bond and mortgage, alleging that the contract was not in reference to her separate estate, but that the same was to secure the repayment of money borrowed from Leaphart by her husband for his own use, and so applied by him.
B. F. Griffin, the husband, was called as a witness for plaintiff, and when asked to state the transaction between himself and Leaphart, objection was interposed upon the ground that such testimony’was incompetent under section 400 of the Code. The objection was overruled, and this ruling constitutes the basis of the first ground of appeal. When the plaintiff was examined as
The case was heard by his honor, Judge Wallace, who, amongst other things, found as matter of fact that B. F. Griffin borrowed from Leaphart the money which the bond and mortgage purports to secure, “for the purposes of his own business as a merchant, and not in any wise as agent of the plaintiff, and afterwards expended the same therefor and further, “that said loan was not made for the benefit of her separate estate; that the proceeds thereof were not expended, in whole or in part, for the same; that the debt evidenced by the bond and mortgage, and said bond and mortgage, were not contracted as to the separate property of the plaintiff.” As matter of law he found that the bond and mortgage were null and void, and that plaintiff is entitled to the relief demanded.
Judgment having been rendered in accordance with these findings, the defendant appeals upon the several grounds set out in the record. The first, second, and third grounds have already been sufficiently indicated. The fourth and fifth raise only a question of fact, as to whether the Circuit Judge erred in his finding that the money was borrowed by B. F. Griffin for his own use, and that his wife had nothing to do with the loan or use of the money. The sixth ground is general in its character, and simply imputed error to the finding that plaintiff was entitled to the relief demanded. The seventh and eighth grounds allege error in not finding that the action was barred by the laches of the plaintiff, and that she was estopped.
The plaintiff" having died pending this appeal, the action has been continued in the name of W. IT. Griffin as her administrator, by a proper order to that effect.
Leaphart, and this was clearly competent under the cases of Brown v. Moore, 26 S. C., 163, and Richards v. Munro, 30 Id., 284, cited by counsel for respondent.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.