Aultman & Taylor Co. v. Gibert

5 S.E. 806, 28 S.C. 303, 1888 S.C. LEXIS 53

• Court: Supreme Court of South Carolina
• Decided: March 28, 1888
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

In 1884 the defendants, Sarah J. Gibert, B. E. Gibert, sr., B. E. Gibert, jr., and W. S. Mouchet, executed a note to Mrs. Fannie J. Marshall, of Abbeville County, for $51,250, payable in certain instalments. The note was given in the purchase of a steam engine and other machinery, to secure which the defendants joined in the execution of a mortgage covering a certain tract of land, or their interest therein, containing one hundred and fifty acres, more or less. The note or obligation was assigned and delivered to the respondent in October, 1884. The first instalment, which fell due January 1, 1885, not having been paid, suit was instituted by the respondent, and judgment obtained in February, 1885, for $765, including interest, fees, and costs, against Sarah J. Gibert, Benj. E. Gibert, jr., and W. S. Mouchet, and foreclosure ordered as to Sarah J. Gibert and Benj. E. Gibert, jr. No sale, however, has been made of the interest of these parties under said foreclosure.

The second instalment became due July 1, 1885, which not being paid, the action below was instituted, demanding judgment of foreclosure as to the interests of the other mortgagors not included in the foreclosure above, to wit, Jennie L. Gibert, A. E. Gibert, Lucy B. Mouchet, and Addie E. Gibert, and that the proceeds of sale be applied, after costs and expenses, to both of the instalments above, the balance, if any, to be held in court to meet the instalment to become due. Judgment was also demanded against Sarah J. Gibert, Benj. E. Gibert, jr., Benj. E. Gibert, sr., and W. S. Mouchet, for any balance that might remain due after said application of the proceeds of the land. The defence set up by all of the defendants was failure of consideration, and in addition to this the defendants, Sarah J. Gibert and Lucy B, Mouchet, interposed the fact that they were married women at the time the said note and mortgage were given.

The master to whom the case was referred found, among other facts not necessary to be mentioned, that there was no breach of warranty; that Sarah J. Gibert and Lucy B. Mouchet were married women, and that Sarah J. Gibert was the purchaser of the machinery, and the principal in the note and mortgage. The Circuit Judge, ITon. T. B. Fraser, who heard the case upon the report of the master, with exceptions, sustained the master in his findings of fact, and adjudged that plaintiffs have judgment against Sarah J. Gibert, Benj. E. Gibert, sr., Benj. E. Gibert, jr., and W. S. Mouchet for the sum of $700, with interest, and also for $50, attorneys’ fee; and further, that plaintiffs have judgment of foreclosure of the interest of the said Sarah J. Gibert, Benj. E. Gibert, jr., Lucy B. Mouchet, Jennie L. Gibert, A. E. Gibert, and Hugh R. Gibert in the mortgaged premises described, and that they have order of sale for the same, giving leave to plaintiffs to issue execution for any deficiency after applying the proceeds of sale of the land, and allowing $50 fee for the attorneys.

From this decree the married women, Sarah J. Gibert and Buey B. Mouchet, have appealed, alleging error, because his honor overruled defendants’ exceptions, six in number, to the master’s report, and five additional exceptions as to the rulings of his honor in the judgment pronounced. Four of the exceptions to the master’s report involved questions of fact, to wit: Whether Mrs. Gibert was the purchaser of the machinery. 2nd. Whether the consideration of the note and mortgage had failed. 3rd. And, consequently, a breach of warranty; and, 4th. Whether the saw mill was too heavy for the engine. As to these questions, inasmuch as we do not find an evident preponderance of testimony against the findings of the master concurred in by the Circuit Judge, under the well established rule they must stand as facts in the case. The other exceptions, including those to the decree, raise the question as to the liability of married women on mortgages, and also whether his honor erred in “giving leave to plaintiff to issue execution against Mrs. Gibert for the deficiency of the mortgage debt.”

The legal existence of a married woman at common law was merged into that of her husband, and as a general rule she had no power to engage in business, purchase property, or make contracts of any kind, her condition as to such matters being that of general disability. The constitution of 1868 (art. XIV., section 8) made a change as to her property, declaring all property held by her at her marriage, or acquired by her, either by gift, grant, inheritance, devise, or otherwise, should be her separate estate, in no way liable for the debts of her husband. After this provision as to the status of her property, it further provided that she should have the power to bequeath, devise, and alienate said property, the same as if she was unmarried. Subsequent to the adoption of the constitution, married womfen, by act of assembly, were empowered (§ 2037) to purchase any species of property in their own name and 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.

Now, Mrs. L. B. Mouchet, appellant, did not sign the note sued on. She, however, joined in the mortgage. She, then, occupies the position of having given a mortgage to secure the debt of another, being a married woman at the time. Such being the case, her appeal is fully sustained by the principles announced in Habenicht v. Rawls, 24 S. C., 461; Aultman Taylor Company v. Rush, 26 Id., 517; and Gwynn v. Gwynn, 27 Id., 526, and we need do no more, therefore, than to refer to said cases.

There is a difference, however, as to appellant, Mrs. Gibert. The master and the Circuit Judge concurred in finding that she was the purchaser of the machinery and was principal in the note for the purchase money. This court held in Pelzer, Rodgers & Co. v. Campbell Co. (15 S. C., 598), that the act of assembly, supra, which gave a married woman power to purchase property, &c., thus enlarging her powers beyond the constitutional grant, supra, was yet constitutional. Under this act Mrs. Gibert doubtless could make the purchase alleged, and if she did do so, as found below, then the note was within the scope of said power.

But admitting this, does it legalize her mortgage and subject it to foreclosure ? This depends upon the affirmation of one or both of the following propositions : Does the power conferred in section 2037, General Statutes, upon a married woman (in view of her common law disabilities) to purchase property, carry with it the power to execute a mortgage of her separate estate to secure the contract of purchase ? 2nd. Does the power to contract and be contracted with as to her separate estate, conferred also by act of assembly (section 2037, General Statutes), carry with it the power to mortgage her separate estate to secure a contract of purchase made by her of property in no way connected with, or contributing to, said separate estate ? We cannot affirm either of these propositions. As to the first, no doubt if this mortgage had been executed after the act of 1870, conferring power upon married women to purchase property and to make contracts generally as fully as a feme sole, and before the amendment of 1882, it would have been a valid instrument; but it was not executed until after the amendment of that act, in 1882, which repealed the general power before conferred by restricting said power to contracts in reference to their separate estate, leaving the special power to purchase intact. Under these conditions the question arises whether the power to purchase property which married women may still have, carries with it the power to mortgage her separate estate to secure such a contract made by herself.

Before the act óf 1870 the condition of married women, as we have said, was that of complete disability, as to contracts, except such as are necessarily incident to the powers expressly conferred by the constitution. By that act, however, and the amendment referred to, they have been invested with the powers above mentioned, to wit, to purchase property, and to contract and be contracted with as to their separate estate. Now, what is the limit of the power to purchase property conferred, and what does it embrace ? To ascertain and determine this we must go to the grant itself and the terms thereof, remembering that before the grant she was powerless as to all contracts, except as above excepted, and therefore that no light-can be thrown upon the question from an analogy which might seem to exist between married women with their disability partially removed, and those exercising a common law right to contract generally, and never being under any disability. In other words, we must look alone to the act conferring the power, and from its terms determine the extent of the grant.

The langauage of the act, as to this matter, is as follows : “A married woman shall have the right to purchase any species of property in her own name and take proper legal conveyances therefor, * * * as if she were unmarried.” The full power to purchase property is conferred beyond doubt, but what more ? Nothing expressly, and certainly nothing can be implied, except such power as may be necessary to the exercise of the power expressed. Does the execution of a mortgage given to secure a purchase fall under either of these conditions ? We think not. It is certainly no part of the contract of purchase, nor is it a necessary accompaniment of such a contract, but it is simply collateral thereto executed, or not, as the parties may choose. It is a mere incident, not essential, and perhaps as often not given in a purchase, as given.

We conclude, therefore, that the power conferred on married women by the act of 1870, to purchase property, does not carry within itself the power to mortgage their separate estate to secure such purchase. And especially are we satisfied with this conclusion, when we find in the next part of the act that as to contracts about their separate estate, they are restricted to such only as may have a direct reference to said estate other than the mere imposition of a lien thereon as security for some other contract having no reference to said estate. Under this latter part of the act a contract of a married woman, to be binding upon her separate estate, “must be designed to benefit her separate property, or in some other way related to or concerned such property,” using the language of Mr. Justice McIver in Habenicht v. Rawls, 24, S. C., 461. Now, if a mortgage given to secure a contract of purchase, having no reference to the separate estate, was held good under the theory that the power to purchase carried with it the power to make such a mortgage, then we would have the inconsistency of the mortgage being' invalid, because it has no reference to said estate in the sense of the act, as construed in Rabenicht v. Rawls; and yet valid upon the former theory-valid and invalid at the same moment. We cannot hold this. No such inconsistency, however, exists, by giving to both portions of the act their legitimate and plain meaning, which is the safe rule in construction, and which we have done hereinabove by recognizing the right of married women to purchase property, as provided in the act, and at the same time restricting her in contracts about her separate property to such as have a direct reference thereto in the sense of the act as heretofore construed.

As to the second proposition. It is hardly necessary to say that the mortgage of Mrs. Gibert had no reference to her separate estate in the sense of the act. The real contract in the case was the purchase of the steam engine and other machinery, not for herself, nor for the use of her separate estate in any way, but for the use of her husband, and the mortgage was given to secure this contract.

As to the attorneys’ fee of $50, the obligation or note provided for the payment of a fee, and we do not see that its allowance, or the amount, was incorrect.

It is the judgment of this court, that the judgment of the Circuit Court, as against Mrs. L. B. Mouchet, be reversed, and that in so far as it adjudges a foreclosure of the mortgage against Mrs. Sarah J. Gibert, it be also reversed. In other respects it is affirmed.

Mr. Justice McIver concurred.

Mr. Justice McGowan.

I agree that this opinion follows the recent case of Aultman Taylor Company v. Rush. I still entertain the views there expressed in the dissent, but I will not •restate them, for the double reason that the majority of the court then gave construction to the law as amended in 1882, and the legislature at its last session settled the question for the future by declaring 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 conveyances, mortgages, or other instruments of writing.” Acts of 1887, page 819.