Rigby v. Logan

45 S.C. 651 | S.C. | 1896

The opinion of the Court was delivered by

Mr. Justice Gary.

The facts in this case are stated in the .decree of his Honor, Judge Witherspoon, which, together with the exceptions, will be set out in the report of the case, except the formal part of said decree ordering the sale of the property.

1 The first and second exceptions will be considered together. In the case of Gibson v. Hutchins, 43 S. C., 287, the Court says: “The notes which were discounted by J. D. Verner were executed while the act of 1887 was of force, which provides that: ‘All conveyances, mortgages, and like formal instruments of writing affecting her separate estate, executed by a married woman, shall be effectual to convey or charge her separate estate whenever the intention so to convey or charge such separate estate is declared in such conveyance, mortgage or other instruments of writing.’ No such intention appears in said notes or mortgages. We are, however, of the opinion that no such requirement is necessary, under the act of 1887, where the contract entered into by a married woman was for the benefit of her separate estate. This view is indirectly sustained by the cases of Reid v. Stevens, 38 S. C., 519, and Martin v. Suber, 39 S. C., 525.” These exceptions must, therefore, be overruled.

2 We next proceed to a consideration of the third exception. In the case of McCord v. Blackwell, 31 S. C., 125, the Court says: “In the sixth ground, defendant complains that the Judge erred in refusing to instruct the jury that if they find that the articles purchased from plaintiffs were not expended by Mrs. Blackwell on her separate property, or for the benefit of the same, plaintiffs cannot recover. We see no error in refusing this request. The question of the liability of a married woman on a given contract must be determined by the provisions of the Constitution and laws limiting her power to contract, and we are unable to discover anything in either the Con-" stitution or any act which would warrant such an instruction. The question in all such cases is as to the nature of the contract, and not as to the disposition of its fruits If the contract in question is shown to be a contract with reference to the separate estate of a married woman, her liability is at once fixed, without regard to the disposition she may afterwards make of the fruits of such contract.” This authority disposes of the third exception.

The fourth, fifth, sixth, and seventh exceptions only raise questions of fact. After a careful consideration of the testimony in the case, we are of opinion that the Circuit Judge was right in his conclusions.

3 We come next to a consideration of the eighth exception. The conclusion of the Circuit Judge is supported by the authorities which he cites, to which may be added the case of Scottish Co. v. Mixson, 38 S. C., 432.

4 We will next consider the ninth exception. The evidence was properly admitted, because it was then the best in existence. Hobbs v. Beard, 43 S. C., 370. Furthermore, the defendant, in her mortgage, agreed.to pay the accounts as shown by the plaintiff’s books of account.

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