34 S.C. 175 | S.C. | 1891
The opinion of the court was delivered by
This was an action to foreclose a mortgage, and the defence was that the defendant, being a married woman at the time, had no power to make the contract evidenced by the bond and mortgage upon which the action was based. In the complaint it is alleged that the defendant made and executed the bond and mortgage in question to the plaintiff, and in the original answer defendant admits this allegation, “but alleges that at the time of the execution and delivery of the bond and mortgage mentioned, this defendant was a married woman ; that the money received from the plaintiff corporation was not used for the benefit of this defendant, or for the benefit of her separate estate.” And in her amended answer she makes the same admission, “but alleges that, at the time of the execution and delivery of the bond and mortgage mentioned, this defendant was a married woman, and that said bond and mortgage were not made for the benefit of her separate estate.”
The undisputed facts are that Dr. G. J. Luhn, the husband of defendant, representing himself as agent of his wife, made an application in writing to the plaintiff for the loan of the money mentioned in the bond, to be secured by a mortgage on a lot owned by defendant, on Smith street, which application was signed “Josephine S. Luhn, per G. J. Luhn;” and that a few days afterwards, when the loan had been approved by the board of directors of the plaintiff bank, Dr. Luhn delivered to the bank the bond and mortgage and obtained the money, and the loan wras charged on the books of the bank against Mrs. Josephine S. Luhn.
The issues were referred to Master Sass, who made his report, wherein, after narrating the facts which he considered as established by the evidence, which is set out in the “Case,” concluded as matter of fact, “that Mrs. Luhn did not receive the money raised upon the bond and mortgage, and that the plaintiff has failed to show by satisfactory proof that the contract sued upon
Where, however, a married woman borrows money, or buys a horse from another, and by her conduct or representations induces the lender or the vendor, as the case may be, to suppose that she is borrowing the money or buying the horse for her own use, when in fact her real purpose, unknown to the party with whom she is dealing, is to obtain the money or the horse for her husband or some one else, she will be estopped from denying that
The judgment of this court is, that the judgment of the Circuit Court be affirmed.