The opinion of the court was delivered by
Mr. Chief Justice McIver.
This is an action on two notes alleged to have been made by the defendant in favor of the plaintiffs, and the complaint is .in the ordinary form appropriate to such an action. The only defence was, that defendant is, and was at the time of the execution.of the notes, a married woman, and was, therefore, incapable of making the contract evidenced thereby. To meet this defence, the plaintiffs undertook to show that the contracts sued upon were contracts as to the separate estate of the defendant, by offering testimony tending to show that defendant had received property from her mother-in-law, Mrs. Mary Miller, upon the condition that she was to pay a certain debt of her husband to the plaintiffs for the amount of which the notes were given. In the outset of the case, defendant inter[545]*545posed an oral demurrer upon the ground that the facts stated in the complaint were not sufficient to constitute a cause of action, which being overruled by his honor, Judge Kershaw, the trial proceeded, and at the close of plaintiffs’ testimony defendant moved for non-suit upon the ground that there was no testimony tending to show that the contracts sued upon were made in reference to the separate estate of the defendant. His honor ruled that where there was a scintilla of testimony, the case must go to the jury, and he therefore refused the motion, and the trial having resulted in a verdict in favor of the plaintiffs, the defendant appeals upon the fourteen grounds set out in the record, which, together with.the judge’s charge, should be incorporated in the report of this case.
As well as we can gather from these grounds, aided by the argument of the counsel for appellant, four errors are imputed to the Circuit Judge: 1st. In overruling the demurrer. 2nd. In receiving incompetent testimony. 3rd. In his instructions to the jury as to the matter of estoppel. 4th. In charging upon the facts.
1 1st. We do not think there was any error in overruling the demurrer. The ground upon which appellant seems to base the demurrer is that the action being on a contract of a mar- • ried woman, the complaint was fatally defective in that it contained no allegation that the contract was made with reference to the separate estate of the married woman. In considering the validity of a demurrer like this, we can look only to the allegations in the complaint, without regard to. what may appear either in the answer or the testimony; and as it does not appear from the complaint that the defendant was a married woman, it is very obvious that there is nothing upon which the demurrer can rest. The complaint being in the ordinary form, and there being no allegation' in it which would indicate that the- defendant labored under any disability of any kind,-it is quite clear that the facts therein stated are sufficient to constitute a cause of action. If, as a matter of fact, the defendant is a married woman, and sees fit to set up, as a defence to the action, her disability as such, then the burden of proof is thrown upon the plaintiff to rebut such defence by showing that the contract was of [546]*546such a character as she was competent to make, notwithstanding her general disability arising from coverture. But until such defence is set up, and the fact of coverture upon which it rests has been established, the plaintiff is under no obligation either to allege or prove such facts as would be necessary to meet and overcome such defence.
The 2nd general assignment of error may be subdivided into the following classes : 1st. Error in receiving testimony inadmissible under section 400 of the Code. 2nd. In receiving parol testimony to vary a written instrument. 3rd. In receiving parol testimony to establish a trust in real estate in violation of the-statute of' frauds. 4th. In receiving parol testimony as to what the defendant had testified on a former trial, although such testimony had been taken down in writing by the stenographer.
2 As to the first of these subdivisions, a brief statement will be necessary. It seems that the plaintiffs claimed that certain property, real as well as personal, had been given to the defendant by her mother indaw, Mrs. Mary Miller, who was dead at the time of the trial, and when the plaintiff, Calvin Brice, was on the stand as a witness, and was proceeding to state wdiat passed between him and Mrs. Mary Miller, no objection was interposed until he began to say that she had given the property to the defendant, when objection was interposed — not, however, upon the gi-ound that such testimony was inadmissible under section 400 of the Code, but upon the ground that the evidences of such gift were in writing, and that the terms of a written instrument could riot be varied by parol evidence, and the objection was sustained. Then, when the witness proceeded to state the change of the possession of the property from Mrs. Mary Miller to the defendant, and said, “Mrs. Mary Miller fixed the property so they could pay the debt,” objection was interposed that such testimony was inadmissible under section’ 400 of the Code, and the court ruled that it would be, but that the witness was merely speaking of a change of the possession. It seems to us that if there was any error in this ruling, it was in favor of the defendant, for certainly, so far as that section of the Code ivas concerned, it was not incompetent for the witness to say that Mrs. Miller “fixed the property so they could pay the debt,” as that [547]*547was not necessarily any transaction or communication between the witness and Mrs. Mary Miller, but was merely a statement as to what she had done. The next objection which we find noted in the “Case” does not purport to be based upon the section of the Code above referred to, but was based upon the ground that a trust could not be created by parol, which will be considered when we reach the 3rd subdivision of this general assignment of error.
3 The next exception to the testimony noted in the “Case” is to the statement made by the witness, that Mrs. Mary Miller said that the debts must be paid; but as the witness had already been allowed, in a previous portion of his testimony, to make this statement without objection, the objection here came too late.
4 The next objection based upon section 400 of the Code, which we find noted, was when the wetness was asked whether he knew how Mrs. Mary Miller (?) came into possession of the property. It is so printed in the “Case,” but we suppose it is a misprint, and that the question really was how the defendant, came into possession of the property, for the counsel objected on the ground that the purpose of the question was to ask about a transaction between the defendant and Mrs. Mary Miller, of which plaintiffs were the beneficiaries, and the court ruled that if the witness had any interest in the transaction, he cannot prove it — really sustaining the objection. Here, again, it seems to us that if there was any error, it was in favor of the defendant; for if the objection was to the testimony as actually printed, or as we have supposed it ought to be printed, ive do not see that the question was inadmissible, as in neither event did it appear that the witness was asked as to a transaction between such witness and a deceased person, but as to a transaction between such deceased and another person.
5 The next objection noted is to the question asked the witness as to whether certain persons went to Mrs.
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The opinion of the court was delivered by
Mr. Chief Justice McIver.
This is an action on two notes alleged to have been made by the defendant in favor of the plaintiffs, and the complaint is .in the ordinary form appropriate to such an action. The only defence was, that defendant is, and was at the time of the execution.of the notes, a married woman, and was, therefore, incapable of making the contract evidenced thereby. To meet this defence, the plaintiffs undertook to show that the contracts sued upon were contracts as to the separate estate of the defendant, by offering testimony tending to show that defendant had received property from her mother-in-law, Mrs. Mary Miller, upon the condition that she was to pay a certain debt of her husband to the plaintiffs for the amount of which the notes were given. In the outset of the case, defendant inter[545]*545posed an oral demurrer upon the ground that the facts stated in the complaint were not sufficient to constitute a cause of action, which being overruled by his honor, Judge Kershaw, the trial proceeded, and at the close of plaintiffs’ testimony defendant moved for non-suit upon the ground that there was no testimony tending to show that the contracts sued upon were made in reference to the separate estate of the defendant. His honor ruled that where there was a scintilla of testimony, the case must go to the jury, and he therefore refused the motion, and the trial having resulted in a verdict in favor of the plaintiffs, the defendant appeals upon the fourteen grounds set out in the record, which, together with.the judge’s charge, should be incorporated in the report of this case.
As well as we can gather from these grounds, aided by the argument of the counsel for appellant, four errors are imputed to the Circuit Judge: 1st. In overruling the demurrer. 2nd. In receiving incompetent testimony. 3rd. In his instructions to the jury as to the matter of estoppel. 4th. In charging upon the facts.
1 1st. We do not think there was any error in overruling the demurrer. The ground upon which appellant seems to base the demurrer is that the action being on a contract of a mar- • ried woman, the complaint was fatally defective in that it contained no allegation that the contract was made with reference to the separate estate of the married woman. In considering the validity of a demurrer like this, we can look only to the allegations in the complaint, without regard to. what may appear either in the answer or the testimony; and as it does not appear from the complaint that the defendant was a married woman, it is very obvious that there is nothing upon which the demurrer can rest. The complaint being in the ordinary form, and there being no allegation' in it which would indicate that the- defendant labored under any disability of any kind,-it is quite clear that the facts therein stated are sufficient to constitute a cause of action. If, as a matter of fact, the defendant is a married woman, and sees fit to set up, as a defence to the action, her disability as such, then the burden of proof is thrown upon the plaintiff to rebut such defence by showing that the contract was of [546]*546such a character as she was competent to make, notwithstanding her general disability arising from coverture. But until such defence is set up, and the fact of coverture upon which it rests has been established, the plaintiff is under no obligation either to allege or prove such facts as would be necessary to meet and overcome such defence.
The 2nd general assignment of error may be subdivided into the following classes : 1st. Error in receiving testimony inadmissible under section 400 of the Code. 2nd. In receiving parol testimony to vary a written instrument. 3rd. In receiving parol testimony to establish a trust in real estate in violation of the-statute of' frauds. 4th. In receiving parol testimony as to what the defendant had testified on a former trial, although such testimony had been taken down in writing by the stenographer.
2 As to the first of these subdivisions, a brief statement will be necessary. It seems that the plaintiffs claimed that certain property, real as well as personal, had been given to the defendant by her mother indaw, Mrs. Mary Miller, who was dead at the time of the trial, and when the plaintiff, Calvin Brice, was on the stand as a witness, and was proceeding to state wdiat passed between him and Mrs. Mary Miller, no objection was interposed until he began to say that she had given the property to the defendant, when objection was interposed — not, however, upon the gi-ound that such testimony was inadmissible under section 400 of the Code, but upon the ground that the evidences of such gift were in writing, and that the terms of a written instrument could riot be varied by parol evidence, and the objection was sustained. Then, when the witness proceeded to state the change of the possession of the property from Mrs. Mary Miller to the defendant, and said, “Mrs. Mary Miller fixed the property so they could pay the debt,” objection was interposed that such testimony was inadmissible under section’ 400 of the Code, and the court ruled that it would be, but that the witness was merely speaking of a change of the possession. It seems to us that if there was any error in this ruling, it was in favor of the defendant, for certainly, so far as that section of the Code ivas concerned, it was not incompetent for the witness to say that Mrs. Miller “fixed the property so they could pay the debt,” as that [547]*547was not necessarily any transaction or communication between the witness and Mrs. Mary Miller, but was merely a statement as to what she had done. The next objection which we find noted in the “Case” does not purport to be based upon the section of the Code above referred to, but was based upon the ground that a trust could not be created by parol, which will be considered when we reach the 3rd subdivision of this general assignment of error.
3 The next exception to the testimony noted in the “Case” is to the statement made by the witness, that Mrs. Mary Miller said that the debts must be paid; but as the witness had already been allowed, in a previous portion of his testimony, to make this statement without objection, the objection here came too late.
4 The next objection based upon section 400 of the Code, which we find noted, was when the wetness was asked whether he knew how Mrs. Mary Miller (?) came into possession of the property. It is so printed in the “Case,” but we suppose it is a misprint, and that the question really was how the defendant, came into possession of the property, for the counsel objected on the ground that the purpose of the question was to ask about a transaction between the defendant and Mrs. Mary Miller, of which plaintiffs were the beneficiaries, and the court ruled that if the witness had any interest in the transaction, he cannot prove it — really sustaining the objection. Here, again, it seems to us that if there was any error, it was in favor of the defendant; for if the objection was to the testimony as actually printed, or as we have supposed it ought to be printed, ive do not see that the question was inadmissible, as in neither event did it appear that the witness was asked as to a transaction between such witness and a deceased person, but as to a transaction between such deceased and another person.
5 The next objection noted is to the question asked the witness as to whether certain persons went to Mrs. Mary Miller’s place, when the court ruled very properly that there was no objection to the witness stating where the parties went; but when the witness was asked what was the purpose in [548]*548getting the persons named to put a value on Mrs. Mary Miller’s land, and objection was interposed, the question was waived.
6 Owing to the general terms in which many of the grounds of appeal are couched, we have been compelled thus to go over the testimony of the plaintiff, Calvin Brice, as it is set out in the “Case,” with a view to ascertain the particular point of the objections based upon section 400 of the Code, and so far as ive have been able to discover, there is no foundation for any such objection. In addition to this, we may remark, that, under the case of Cantey v. Whitaker, 17 S. C., 527, it is not free from doubt whether any such objection could be sustained upon another ground. It is not clear that any such relation existed between Mrs. Mary Miller and the defendant as would render it incompetent for the plaintiff to testify to a transaction or communication between himself and Mrs. Mary Miller, for while the defendant was the alienee of Mrs. Mary Miller, the case cited shows that it does not follow she was her assignee.
7 The second subdivision of this general assignment of error clearly cannot be sustained; for, in the first place, it does not appear that the alleged transfer of the personal property was evidenced by any written instrument, though the real estate ivas conveyed by a deed, a copy of which is set out in the “Case.” But waiving this, the testimony objected to was not offered to vary the terms of any written instrument, but simply to show the real consideration of the alleged transfer, which is clearly admissible.
8 The third subdivision of this general assignment of error is based upon a misconception of the scope and purpose of the testimony objected to. It was not offered for the purpose of establishing any trust in the land; and the Circuit Judge ruled that such a trust could not be established by such evidence. On the contrary, the obvious purpose and effect of the testimony was to show that the consideration of the alleged transfer to the defendant was that she would pay the debts due to plaintiffs; that these debts were, in fact, the purchase money of the property; and surely it is not necessary now to cite authority to show that a contract of a married woman to pay the purchase [549]*549money of property which she has bought, is a contract in reference to her separate estate.
9 The fourth subdivision cannot be sustained. There can be no doubt that it is competent for one party to show what the other party to the action has admitted, or said,, as to thesubjectmatter of controversy on a previous occasion, whether on a former trial or not. But the point of this particular allegation of error seems to be that, inasmuch as the testimony of the defendant at the former trial had been taken down by the stenographer in writing, that constituted the best evidence as to what her testimony had been, and, therefore, it was not competent for the,plaintiff to state what the defendant had said on a former trial. We know of no rule of law which would sustain this position. While it may be true that what a witness writes down himself, or what is contained in some paper written by another and signed by himself, may be the best evidence of what the witness has said on a former occasion, it does not follow that where a third person, be he a stenographer or not, takes down in writing what a witness said, this writing is the best evidence, in such a sense, as to exclude any other. Stenographers are no more infallible than any other human beings, and while, as a rule, they may be accurate, intelligent, and honest, they are not always so, and. therefore, it will not do to lay down as a rule that the stenographer’s notes, when translated by him, are the best evidence of what a witness has said, in such a sense as to exclude the testimony of an intelligent bystander, who has heard and paid particular attention to the testimony of the witness, as to what such witness may have said on a former trial. The Circuit Judge, in his comments to the jury upon this subject, w'ent quite as far (if not too far) as it was proper to go, when he told them that the stenographer’s notes would outweigh the testimony of a person who spoke from memory only.
10 [550]*5503 [549]*549The appellant also objects that some of the testimony was irrelevant and not in reply, and also that some of the questions propounded to the witnesses were leading questions. As to the objections based upon irrelevancy and not being in reply, it is sufficient to say that these are matters which must necessarily be left largely to the discretion of the judge be[550]*550fore whom the case is tried; and surely there was no abuse of such discretion in this case. As to leading questions, we see no error. Those specially indicated seem to be mere repetitions of what the witness had previously stated, and this does not render the questions amenable to such objection.
11 The 3rd general assignment of error as to the matter of estoppel is based upon a misconception of the charge of the Circuit Judge. It appears that while the plaintiffs claimed that the personal property had been transferred by Mrs. Mary Miller to the defendant upon the consideration that she would pay the debts due to the plaintiffs, the defendant, on the other hand, insisted that though the real estate had been conveyed to her, yet the personal property had been transferred to her husband and not to her. This, therefore, was one of the issues of fact in the case, and the remarks made in the charge as to the estoppel arising from the undisputed fact, that the defendant had given the plaintiffs a mortgage on the personal property, related solely to that issue of fact, and had no reference to any estoppel that might arise from a representation made by defendant that the contracts in question were contracts in reference to her separate estate. That was not the ground upon which the plaintiffs based their claim to hold the defendant liable, but that claim was based upon the ground that the notes sued upon really represented, in part, at least, the purchase money of the property which defendant had received from Mrs. Mary Miller, and that defendant, instead of giving her notes to Mrs. Mary Miller, gave them to the plaintiffs for the debt which Mrs. Mary Miller insisted should be paid. Of course, to sustain this ground it was necessary for the plaintiffs to show' that the defendant had herself, and not her husband, received the property from Mrs. Mary Miller, and the mortgage was simply relied upon as an admission that the property was hers and not her husband's; for surely it could not be denied that where a person signs a mortgage on certain property, he cannot afterw-ards, in a contest with the mortgagee, be permitted to deny that the property mortgaged ivas his.
[551]*55112 [550]*550The 4th and last general assignment of error is that the Circuit Judge violated the constitutional provision by charging upon [551]*551the facts. It seems to us that the charge itself furnishes its own best vindication. While the judge may have expressed his opinion as to such immaterial matters as the propriety and commendability of Mrs. Mary Miller’s conduct in disposing of her property, we are unable to discover any instance in which he indicated any opinion as to any of the material issues of fact in the case.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.