The opinion of the court was delivered by
Mr. Chief Justice Simpson.
The facts of this case, as stated in the decree of his honor, Judge Hudson, who heard it, are substantially as follows: The action was founded upon two notes, given by J. N. Rush and his wife, Eugenia, for the purchase money of a steam engine. The notes were secured by a mortgage upon a tract of land, the separate estate of the wife, which mortgage was executed by the wife, her husband joining therein. The object of the action was to foreclose the mortgage. Two defences were set up. First, a breach of contract, and a counterclaim for damages, growing out of said alleged breach. Second, the non-liability of Mrs. Rush on the notes and mortgages, she being a married woman.
The master, to whom the case was referred, reported that there was no breach of the contract, in which his honor concurred. He also reported that Mrs. Rush was liable both by the terms of the statute and because the contract was for the benefit of her separate estate. His honor did not concur in the latter branch of this proposition, to wit, that the contract was for the benefit of her separate estate, but he sustained the master in the first branch, holding and decreeing that the liability of the wife was fixed by the mortgage, at least to the extent of the value of the land embraced therein, should so much be necessary to pay the debt, and he ordered a foreclosure, &c. He also allowed a fee of $50 to plaintiffs’ attorney, to be paid out of the proceeds of the sale.
[521]*521The appeal of the defendants alleges error, in that his honor sustained the findings of the master that there was no breach of the contract, nor damages resulting therefrom, supporting their counter-claim. Second, because his honor held Mrs. Rush liable, under her mortgage, to the extent of the value of the land, if so much was necessary. And third, that he allowed a fee of $50 out of the proceeds of the land to plaintiffs’ attorney.
The first question is a question of fact, in which the master and the judge concurred. We have examined the evidence, and we do not find such a want of support to this finding as would warrant us to reverse it. We must therefore regard the fact thus found as established. And we sustain the'law applied to said finding. This disposes of the counter-claim, &c.
The main question in the case is as to the liability of Mrs. Rush on her mortgage, or rather the liability of her separate estate for a debt contracted by her husband, to which she, however, was a party, and to secure which she executed the mortgage in question, although said debt was’not contracted for the benefit of said separate estate. This brings up squarely the question whether a married woman can mortgage her separate estate for a debt not contracted for its benefit, the debt in fact being the debt of another party, in this instance that of her husband. Or whether, being herself limited to contracts “as to her separate estate,” she is not also confined in the execution of mortgages to that limit, to wit, to contracts “as to her separate estate.”
The Circuit Judge held that the notes sued on were nullities as to Mrs. Rush, the fact having been established that they were not given for the benefit of her estate. , This holding was no doubt correct, under the principle of the recent case of Habenicht v. Rawls, 24 S. C., 461. We must start out, then, with the proposition that Mrs. Rush is not liable in any way upon the notes sued on; that they were void as to her, for the reason that she had no power to make them, she being at the time a married woman, and the notes, not being the evidence of a debt contracted “as to her separate estate.” So the clear question is, as stated, whether a married woman can mortgage her separate estate to secure such notes.
It will be conceded, without argument, that a married woman [522]*522has no such power at common law. It follows, then, that if she, has such power, it must be found conferred upon her by one or both of the two other sources of all of our law, except the common law, to wit, the constitution of 1868 and the statutes enacted in accordance .therewith. The boundary, therefore, of the question is the constitution and the act of the assembly upon the rights of married women, to which we will now address ourselves.
There is but one section in the constitution on this subject, which is as follows: “The real and personal property of a married woman, held at the time of her marriage, or that which she may thereafter acquire, either by gift, grant, inheritance, devise, or otherwise, shall not be subject to levy and sale for her husband’s debts, but shall be held as her separate property, and may be bequeathed, devised, or alienated by her the same as if she were unmarried.” Article 14, section 8.
In considering the question it must be borne in mind all the time, and it may be well to repeat it here, that before the adoption of the constitution of 1868, and the acts passed since on this subject, a married woman in this State was absolutely devoid of all power in the premises, except in trust estates where certain power might be conferred. But generally she was powerless as to all contracts, mortgages, conveyances, deeds, and all such papers. Such being the fact, it follows that she is still powerless, except so far as her rights in this regard have been enlarged by the constitution or the acts, which enlargement must be pointed out, and to which she must be confined.
Now, the general right to make a mortgage of her separate estate to secure even her own debt, much less the debt of her husband or of any other person, certainly cannot be claimed under the section of the constitution referred to above. That section has but three purposes (neither of w'hich embraces the power in question), to wit, first, to declare the property of the wife, however acquired, to be her separate estate; second, to protect this property from levy and sale for her husband’s debts; and third, to confer upon the wife the power to bequeath, devise, or alienate said property. It is true that by it her common law disability has been removed to some extent, to wit, to the extent of allowing her to bequeath, devise, and to alienate her separate estate, [523]*523and this she'is authorized to do as fully as if she were a single Woman, but nothing more. Her disability as to all else remains as before, so far as the constitutional provisions affect her, the prime and essential object of which seems to have been to protect the property of wife from debts and contracts of the husband, and to obviate the necessity of a trustee to this end.
This was, no doubt, the motive and foundation of the section^ and this was accomplished in its first branch, and then follows the power to bequeath, devise, and alienate, which was a necessary incident to the enjoyment of the legal ownership of the property with which the wife had now been invested. Giving a lien, however, on real estate by a mortgage is neither a bequest, a devise, nor an alienation (Warren v. Raymond, 17 S. C., 198), and yet this is all the power conferred by the constitution. And, besides, if such lien is intended to secure the payment of a debt of the husband, it would defeat the main and most important purpose of the section, to wit, the exemption of her property from his debts.
We conclude, therefore, that'the mortgage of Mrs. Rush finds no support in article XIY., section 8, of the Constitution.
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The opinion of the court was delivered by
Mr. Chief Justice Simpson.
The facts of this case, as stated in the decree of his honor, Judge Hudson, who heard it, are substantially as follows: The action was founded upon two notes, given by J. N. Rush and his wife, Eugenia, for the purchase money of a steam engine. The notes were secured by a mortgage upon a tract of land, the separate estate of the wife, which mortgage was executed by the wife, her husband joining therein. The object of the action was to foreclose the mortgage. Two defences were set up. First, a breach of contract, and a counterclaim for damages, growing out of said alleged breach. Second, the non-liability of Mrs. Rush on the notes and mortgages, she being a married woman.
The master, to whom the case was referred, reported that there was no breach of the contract, in which his honor concurred. He also reported that Mrs. Rush was liable both by the terms of the statute and because the contract was for the benefit of her separate estate. His honor did not concur in the latter branch of this proposition, to wit, that the contract was for the benefit of her separate estate, but he sustained the master in the first branch, holding and decreeing that the liability of the wife was fixed by the mortgage, at least to the extent of the value of the land embraced therein, should so much be necessary to pay the debt, and he ordered a foreclosure, &c. He also allowed a fee of $50 to plaintiffs’ attorney, to be paid out of the proceeds of the sale.
[521]*521The appeal of the defendants alleges error, in that his honor sustained the findings of the master that there was no breach of the contract, nor damages resulting therefrom, supporting their counter-claim. Second, because his honor held Mrs. Rush liable, under her mortgage, to the extent of the value of the land, if so much was necessary. And third, that he allowed a fee of $50 out of the proceeds of the land to plaintiffs’ attorney.
The first question is a question of fact, in which the master and the judge concurred. We have examined the evidence, and we do not find such a want of support to this finding as would warrant us to reverse it. We must therefore regard the fact thus found as established. And we sustain the'law applied to said finding. This disposes of the counter-claim, &c.
The main question in the case is as to the liability of Mrs. Rush on her mortgage, or rather the liability of her separate estate for a debt contracted by her husband, to which she, however, was a party, and to secure which she executed the mortgage in question, although said debt was’not contracted for the benefit of said separate estate. This brings up squarely the question whether a married woman can mortgage her separate estate for a debt not contracted for its benefit, the debt in fact being the debt of another party, in this instance that of her husband. Or whether, being herself limited to contracts “as to her separate estate,” she is not also confined in the execution of mortgages to that limit, to wit, to contracts “as to her separate estate.”
The Circuit Judge held that the notes sued on were nullities as to Mrs. Rush, the fact having been established that they were not given for the benefit of her estate. , This holding was no doubt correct, under the principle of the recent case of Habenicht v. Rawls, 24 S. C., 461. We must start out, then, with the proposition that Mrs. Rush is not liable in any way upon the notes sued on; that they were void as to her, for the reason that she had no power to make them, she being at the time a married woman, and the notes, not being the evidence of a debt contracted “as to her separate estate.” So the clear question is, as stated, whether a married woman can mortgage her separate estate to secure such notes.
It will be conceded, without argument, that a married woman [522]*522has no such power at common law. It follows, then, that if she, has such power, it must be found conferred upon her by one or both of the two other sources of all of our law, except the common law, to wit, the constitution of 1868 and the statutes enacted in accordance .therewith. The boundary, therefore, of the question is the constitution and the act of the assembly upon the rights of married women, to which we will now address ourselves.
There is but one section in the constitution on this subject, which is as follows: “The real and personal property of a married woman, held at the time of her marriage, or that which she may thereafter acquire, either by gift, grant, inheritance, devise, or otherwise, shall not be subject to levy and sale for her husband’s debts, but shall be held as her separate property, and may be bequeathed, devised, or alienated by her the same as if she were unmarried.” Article 14, section 8.
In considering the question it must be borne in mind all the time, and it may be well to repeat it here, that before the adoption of the constitution of 1868, and the acts passed since on this subject, a married woman in this State was absolutely devoid of all power in the premises, except in trust estates where certain power might be conferred. But generally she was powerless as to all contracts, mortgages, conveyances, deeds, and all such papers. Such being the fact, it follows that she is still powerless, except so far as her rights in this regard have been enlarged by the constitution or the acts, which enlargement must be pointed out, and to which she must be confined.
Now, the general right to make a mortgage of her separate estate to secure even her own debt, much less the debt of her husband or of any other person, certainly cannot be claimed under the section of the constitution referred to above. That section has but three purposes (neither of w'hich embraces the power in question), to wit, first, to declare the property of the wife, however acquired, to be her separate estate; second, to protect this property from levy and sale for her husband’s debts; and third, to confer upon the wife the power to bequeath, devise, or alienate said property. It is true that by it her common law disability has been removed to some extent, to wit, to the extent of allowing her to bequeath, devise, and to alienate her separate estate, [523]*523and this she'is authorized to do as fully as if she were a single Woman, but nothing more. Her disability as to all else remains as before, so far as the constitutional provisions affect her, the prime and essential object of which seems to have been to protect the property of wife from debts and contracts of the husband, and to obviate the necessity of a trustee to this end.
This was, no doubt, the motive and foundation of the section^ and this was accomplished in its first branch, and then follows the power to bequeath, devise, and alienate, which was a necessary incident to the enjoyment of the legal ownership of the property with which the wife had now been invested. Giving a lien, however, on real estate by a mortgage is neither a bequest, a devise, nor an alienation (Warren v. Raymond, 17 S. C., 198), and yet this is all the power conferred by the constitution. And, besides, if such lien is intended to secure the payment of a debt of the husband, it would defeat the main and most important purpose of the section, to wit, the exemption of her property from his debts.
We conclude, therefore, that'the mortgage of Mrs. Rush finds no support in article XIY., section 8, of the Constitution.
Let us next examine the act of assembly on this subject, to wit, sections 2035, 2036, and 2037 of the General Statutes. Section ■2035, and the first part of section 2036, contain nothing more than the provisions, nearly verbatim, of the constitution, supra, and therefore they need no further consideration here. The latter part of section 2036 provides for the disposition of the estates of married women dying intestate, which is not involved here; then follows a provision, “That all deeds, mortgages, and legal instruments of whatever kind shall be executed by her in the same manner, and have the same legal force, and effect, as if she were unmarried.” This provision is earnestly claimed as furnishing the right to mortgage, it being contended that the power to do so is here conferred. This proposition will be considered below. Section 2037 provides: “That a married woman shall have the right 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.”
[524]*524These sections of the general statutes were taken from the act of 1870 (14 Stat, 325), entitled, “An act to carry into effect the provisions of the constitution in relation to the rights of married women,” being sections 1, 2, and 3 of that act. To ascertain their true intent and meaning, they must be construed together •and as a whole. At the time of the passage of this act, 1870, the words, “as to her separate estate,” immediately following the words, “to be contracted with,” in section 2037, were not incorporated. They have since (1882) been inserted by amendment, but before the execution of the mortgage herein. Without these words, supposing the general assembly could invest a married woman with power beyond that conferred by the constitution (see Pelzer, Rodgers & Co. v. Campbell & Co., 15 S. C., 590), there is no doubt that section 3 of the act of 1870 invested her with all the powers of a femme sole, completely annulling all the disabilities of marriage at common law, and making her absolutely free and competent to make any contract or to execute any kind of a paper, deed, or mortgage that a femme sole could make.
And section 2, now section 2036, General Statutes, recognizing her right in this respect as then conferred in section 3, now 2037, General Statutes (with those important words omitted), provided in its last clause, as stated above, to wit, that all deeds, mortgages, and' legal papers that she might execute should be executed in the same manner, and should have the same legal force and effect as if she were unmarried. We do not conceive, however, that this recognition was the conferring of an independent power to execute a mortgage or other paper, in addition to the power conferred in section 3 of the act; but we think it was a mere declaration that such papers, deeds, mortgages, as she could legally make under the general provisions of the act, should be made as other people made them; that is, in the same manner as to form, &c., and when so made they should have the same force and effect as other deeds, &c. And therefore instead of looking to this section to ascertain what papers she can make, we must look to the constitution and to section 2037, where her powers are expressly conferred. In other words, section 2037, of the General Statutes and section 8 of the Constitution are the sections which confer the powers, and sec[525]*525tion 2036 declares the manner in which said powers shall be exercised, at least as to the execution of the papers therein mentioned.
Now, as the act of 1870, in section 3, conferred, as it did, upon married Avomen. full -poAver to contract and be contracted with, on any and on all matters, no doubt this power carried with it the poAver to secure the performance of her contracts by a mortgage of her property. Hence the necessity of section 2 prescribing the manner of execution. And if this case had arisen before the amendment mentioned, Avhen the poAvers of the Avife were unlimited, doubtless the judgment beloAv would be.held correct. But it has occurred since, and the act, as it now reads, must be applied to it; and in making the application we are not to know that said Avords Avere at any time absent or omitted.
As the section now reads, it must be admitted that no poAver to contract or be contracted Avith except “as to her separate estate” is conferred upon a married Avoman. That is the language of the section, and there is no ambiguity about it, and there being no additional power conferred elsewhere, the exercise of any other must be illegal. Now, it is admitted, or at least the judge has found as a matter of fact, and there is no exception to said finding1 that the notes sued on here were not contracts “as to the separate estate” of Mrs. Rush, so that the conclusion is inevitable, and the Circuit Judge has so held, that they must be expunged from the case. This leaves nothing but the mortgage as to her. Can it be construed and held a contract “as to her separate estate” ? If not, can it be enforced in face of the fact that she can make no other kind of contract ?
First, is a mortgage a contract in the sense of the act ? A contract is an agreement founded upon a legal consideration, to [526]*526do, or not to do, &c. A mortgage is the imposition of a lien on certain property therein mentioned, given to secure a contract; but it is something independent of the contract itself, and is collateral thereto. It is a means consented to, by which the contract to which it is collateral may be enforced. Doubtless, as we have said, the power to make a contract carries with it the power to execute a mortgage to secure it, but where there is no power to make the contract to be secured, whence corneth the power to secure it by a mortgage ?■ If it exists at all, it must be found elsewhere than in section 2037, because, as we have seen, that confines the wife entirely to contracts “as to her separate estate.”
It is contended that it is found in the last clause of 2036, quoted above, so that the question comes back again, does this clause confer such power? We have already given our understanding of the intent of this clause, to wit, that it was nothing more than to prescribe the manner of the execution of the papers, which a wife cojild make under the other provisions of the act, &c. To support this view we may say it can hardly be supposed that the general assembly intended to confer power on a married' woman to make a mortgage of her estate to secure a contract, which contract it had declined to permit her to make. This is the exact case claimed here. It is conceded that the notes given by Mrs. Rush are nullities as to her, on the ground that not having been made “as to her separate estate,” she was without power to give them. They are, therefore, confessedly utterly void as to her, and yet it is claimed that she has made her estate liable to pay them by her mortgage.
There may be, in some respects, a difference between one being liable personally on a contract, and certain of his property being made liable thereby — the difference between a contract in person-am and a contract in rem. But that difference cannot be interposed here to support the judgment below. The scheme of the married woman act was chiefly — we may say, almost entirely — to protect her property, and to consecrate it to her use, especially against the debts of her husband. We cannot, therefore, suppose that it was intended to limit her power to contract personally as to her separate estate, and then give her the power to mortgage' [527]*527unlimitedly said estate, not only for her own debt, but for the debt of any one else, and whether contracted “as to her separate estate” or not; yet such would be the result of the position contended for. It seems to us that before we could reach such a conclusion bearing such fruit, we should find some language expressly conferring this remarkable, inconsistent power, instead of relying on a mere inference drawn from general terms like those in section 2036.
If this be the true doctrine, we would have the strange inconsistency of a married woman having no power to make any contract herself, except “as to her separate estate” (section 2037), and yet having the power to pledge her whole estate by mortgage to secure the contract of another, made without reference to said estate — thus sowing the seeds of inevitable destruction in the very scheme which the married woman’s act was intended to establish — the protection of her property, and its dedication, as it. were, to her use, free from the debts and contracts of her husband. Let the doctrine contended for be the law, and the scheme of the act is gone; because it is well known how willingly a confiding wife will execute any paper desired by her husband, especially if there be hope to save him from wreck or financial ruin.
• But admit that a mortgage is a contract in the sense of the act, was.it a contract here “as to the separate estate” of Mrs. Rush? True, it embraces her separate estate, but did it have reference thereto in the sense of the act ? The only reference it had was to encumber it with a lien for the contract of another. Is such a reference included in the meaning of the words “as to her separate estate” ? Was it intended by restricting a married woman to contracts “as to her separate estate” to include every and all contracts that might in any way affect or bear upon said estate ? If so, she had this power in full before these words were inserted-in 1882, as we have seen above. As the section stood originally she had all the powers of a femme sole. She could make a contract of any kind, and her separate property was liable, like the property of any other debtor, to be reached by action and judgment, and she could mortgage it, as she pleased. Why, then, insert the suggested words ? It must have been because the legislature saw the danger to her, in this broad power, and with the [528]*528view to shield her from it, and doubtless to prevent her from doing the very thing attempted here, she was confined by the amendment to contracts intended to benefit, her estate, or at least having some direct reference to it, independent of any other contract to which it might be attempted to be pledged as a collateral.
Now, the mortgage here is not a contract of this kind ; it was not intended in itself to secure any benefit or improvement to the separate estate, or to affect it in any way in the sense of the act. Nor was it intended to secure a contract made for that purpose. On the contrary, it was intended to secure the purchase money of a steam engine, bought by her husband, and, according to the facts found, having no reference whatever to the separate estate of Mrs. Rush.
It is not our province to suggest what the law should be, either in this or in any other matter, and this we have not attempted here. Our duty is to declare what the law is in the case before us, and to this we have confined ourselves, reaching the conclusion in so far as it depends upon the construction of the constitution and the act of 1870, that the judgment below must be reversed.
There is now nothing left but-to show that our decided cases are not in conflict with the conclusion reached, which, we think, will appear from a short reference thereto. The cases in our reports touching this subject are Witsell v. Charleston, 7 S. C., 88; Ross v. Linder, 12 Id., 592; Pelzer, Rodgers & Co. v. Campbell & Co., 15 Id., 587; Witte v. Wolfe, 16 Id., 256; Clinkscales v. Hall, 15 Id., 604 ; and the late case of Habenicht v. Rawls, 24 Id., 461.
In Witsell v. Charleston, the pontest was over certain city stock, personal property, and the main question involved was, whether a married woman, Mrs. Witsell, had power to alienate her stock, under article XIV., section 8, of the Constitution, in which she had an equitable estate at the time of the adoption of the constitution. The court held, under the facts of that case and the character of the trust, that she could, and incidentally having the power to alienate, she could pledge it for her husband’s debts.
In Ross v. Linder nothing was decided, except that a wife could bind herself by contract.
In Pelzer, Rodgers Co. v. Campbell & Co., a married wo[529]*529man signed the notes of her son as surety. The court held that she could do so under the act of 1870, and further, that there was nothing in the constitution of 1868 which prevents the legislature from giving a married woman rights and powers in addition to those conferred by that instrument, as was done in the act of 1870, to the extent of making her a femme sole as to contracts generally, &c., the constitution having given her no other power but to bequeath, devise, and alienate her separate estate.
In Clinkscales v. Hall, it was held that a married woman might be sued at law upon a personal contract entered into as surety for her husband.
In Witte v. Wolfe, the court held that a married woman may contract as surety for her husband, and thereby make herself and her separate estate liable for the payment of the debts, and also, that under the act of 1870 she could mortgage a tract of land conveyed to her after the passage of that act, and that, independently of the constitution and the act of 1870, she could mortgage a tract of which she was a cestui que trust, the trust deed giving her such power.
All of these cases, however, were decided before the amendment of 1882 to the act of 1870, by which the important words, “As to her separate estate,” were inserted, and when there was no doubt, these words being absent, that a married woman by the force and effect of the act had all the powers of a femme sole as to making contracts. Of course, then, she could become surety for her husband or for any one else, or she could execute a mortgage or any other paper that a femme sole could execute.
We come next to Habenicht v. Rawls. This is a recent decision, and since the amendment of 1882. It was a case in which Mrs. Agnew, a married woman, endorsed certain notes made by Rawls and Wilhalf, in discharge of a lien which the payee of said notes held on a stock of goods of Rawls and Wilhalf. The question in the ease was, could she be made liable on her endorsement ? This court held that while before the amendment of 1882 to the act of 1870, and in accordance with the cases mentioned above, had the endorsement been made then, she would have been responsible; yet that now, and since the amendment,' she could not be held liable, as that amendment limited her power exclu[530]*530sively to contracts, the object of which was to affect directly her separate estate, as contradistinguished from a contract with an intention merely to bind said separate estate — Mr. Justice Mclver closing a most carefully considered opinion for the court in these words : “If, therefore, a wife should sign a note as surety for her husband, or, indeed, for any other person, and should declare in the note, in express terms, her intention to bind her separate estate, that would not make the contract valid as to her, unless it was made to appear that the contract, though executed by her as surety, was designed to benefit her separate property, or in some way related to or concerned such' property.” This case, we think, is conclusive of the question.
We have not referred to cases decided in other States, for the reason that the question involved is mainly statutory. And as the statutes of the different States differ materially in their provisions, the cases construing them elsewhere could give us no aid here.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that the case be remanded, with leave to the plaintiff to apply below for judgment against the defendant, J. N. Rush, for the amount due on the note.
Mr. Justice McIver concurred.