The opinion of the court was delivered by
Mr. Justice McIver.
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 [184]*184was made with reference to Mrs. Luhn’s separate estateand as matter of law, “that the bond and mortgage sued upon must be declared null and void.” To this report the plaintiff filed numerous exceptions, and the case was heard by his honor, Judge Fraser, upon the report and exceptions, who rendered his decree (which, together with the master’s report, should be incorporated in the report of this case), overruling the conclusions reached by the master, for the reasons therein stated, and rendering judgment in favor of plaintiff. From this judgment defendant appeals upon the several grounds set out in the record, which, under the view we take of this case, need not be specifically stated here.
1 In Building and Loan Association v. Jones (32 S. C., at page 313), the following language was used by the court: “Since the decisions in the cases of Greig v. Smith, 29 S. C., 426; Brown v. Thomson, 31 S. C., 436; Gwynn v. Gwynn, Ibid., 482; Howard v. Kitchens, Ibid., 490; Law v. Lipscomb, Ibid., 504; and Schmidt v. Dean, Ibid., 498, it must be regarded as settled, that where a married woman, either directly or through her agent, borrows money from another, the money so borrowed becomes at once a part of her separate estate, and her contract to repay the same is a contract with reference to her separate estate, which may be enforced against her; and that the lender, in the absence of notice to the contrary, has a right to assume that the money was borrowed for the use of the married woman, and she is estopped from denying that fact, unless it is sliowm that the lender had notice to the contrary. These cases furthermore determine that the husband may, if so -authorized by the wife, act as her agent, and that the disposition which may be made of the money after it has been borrowed cannot affect the question. See also McCord v. Blackwell, 31 S. C., 125.”
[185]*1852 [184]*184In view of this deliberate statement of what must be considered as the settled law of this State in regard to the contracts of married women entered into after the adoption of the General Statutes of 1882, and prior to the amendment of 1887, it seems to us that the material questions raised by this appeal are, 1st. Whether the money secured by the bond and mortgage was borrowed [185]*185for the use of the defendant. 2nd. If not, whether the plaintiff had any notice that it was borrowed for the use of her husband. "While there is no evidence that the money was borrowed by defendant in person, we think the evidence does show that it was borrowed by her through her husband as her agent. It is true that there is no direct evidence that the defendant had ever constituted her husband her agent, yet agency may be, and often is, established by circumstances. There can be no doubt that, in this instance, the husband assumed to act as agent for his wife in effecting this loan, and so represented himself to the plaintiff; for the application was in writing, to which the name of the defendant was signed by the husband as her agent, and though this would not be sufficient of itself to establish the agency, yet, taken in connection with the other circumstances, we think the agency is clearly established. The defendant admits in -her answer the execution of’ the bond and mortgage, which necessarily involved the delivery of those papers, and as it is not pretended that she delivered them in person to the plaintiff, but they were delivered by the husband, her admission, connected with this act of her husband, shows that they were delivered by him as her agent; unless we should assume, in the absence of any evidence to that effect, that this husband, who the defendant’s own witness, her mother, says was “a kind husband, all that could be desired as a husband and father,” had practised a deliberate fraud on his wife. If, then, the husband, as the agent of his wife, made this application in his wife’s name for the loan of the money, promising to deliver, and actually delivering, his wife’s bond and mortgage, the execution of which is admitted by her, to secure the repayment of the money borrowed, surely the plaintiff had a right to assume, in the absence of any evidence whatever to the contrary, that the money was being borrowed for the wife’s own use, upon the plain, common sense view that where one person applies to another for the loan of money, the lender has a right to assume, in the absence of anything being said or intimated to the contrary, that the borrow'er wants the money for his own use.
[186]*1863 [185]*185It is contended, however, that this doctrine, which it is claimed was for the first time laid down in Building and Loan Associa[186]*186tion v. Jones, supra, is in conflict with the rule laid down in Taylor v. Barker, 30 S. C., 242; McCord v. Blackwell, 31 Id., 135; Brown v. Thomson, Ibid., 442; and Gwynn v. Gwynn, Ibid., 482. But a careful examination of those cases will show that there is no sucli conflict.
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The opinion of the court was delivered by
Mr. Justice McIver.
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 [184]*184was made with reference to Mrs. Luhn’s separate estateand as matter of law, “that the bond and mortgage sued upon must be declared null and void.” To this report the plaintiff filed numerous exceptions, and the case was heard by his honor, Judge Fraser, upon the report and exceptions, who rendered his decree (which, together with the master’s report, should be incorporated in the report of this case), overruling the conclusions reached by the master, for the reasons therein stated, and rendering judgment in favor of plaintiff. From this judgment defendant appeals upon the several grounds set out in the record, which, under the view we take of this case, need not be specifically stated here.
1 In Building and Loan Association v. Jones (32 S. C., at page 313), the following language was used by the court: “Since the decisions in the cases of Greig v. Smith, 29 S. C., 426; Brown v. Thomson, 31 S. C., 436; Gwynn v. Gwynn, Ibid., 482; Howard v. Kitchens, Ibid., 490; Law v. Lipscomb, Ibid., 504; and Schmidt v. Dean, Ibid., 498, it must be regarded as settled, that where a married woman, either directly or through her agent, borrows money from another, the money so borrowed becomes at once a part of her separate estate, and her contract to repay the same is a contract with reference to her separate estate, which may be enforced against her; and that the lender, in the absence of notice to the contrary, has a right to assume that the money was borrowed for the use of the married woman, and she is estopped from denying that fact, unless it is sliowm that the lender had notice to the contrary. These cases furthermore determine that the husband may, if so -authorized by the wife, act as her agent, and that the disposition which may be made of the money after it has been borrowed cannot affect the question. See also McCord v. Blackwell, 31 S. C., 125.”
[185]*1852 [184]*184In view of this deliberate statement of what must be considered as the settled law of this State in regard to the contracts of married women entered into after the adoption of the General Statutes of 1882, and prior to the amendment of 1887, it seems to us that the material questions raised by this appeal are, 1st. Whether the money secured by the bond and mortgage was borrowed [185]*185for the use of the defendant. 2nd. If not, whether the plaintiff had any notice that it was borrowed for the use of her husband. "While there is no evidence that the money was borrowed by defendant in person, we think the evidence does show that it was borrowed by her through her husband as her agent. It is true that there is no direct evidence that the defendant had ever constituted her husband her agent, yet agency may be, and often is, established by circumstances. There can be no doubt that, in this instance, the husband assumed to act as agent for his wife in effecting this loan, and so represented himself to the plaintiff; for the application was in writing, to which the name of the defendant was signed by the husband as her agent, and though this would not be sufficient of itself to establish the agency, yet, taken in connection with the other circumstances, we think the agency is clearly established. The defendant admits in -her answer the execution of’ the bond and mortgage, which necessarily involved the delivery of those papers, and as it is not pretended that she delivered them in person to the plaintiff, but they were delivered by the husband, her admission, connected with this act of her husband, shows that they were delivered by him as her agent; unless we should assume, in the absence of any evidence to that effect, that this husband, who the defendant’s own witness, her mother, says was “a kind husband, all that could be desired as a husband and father,” had practised a deliberate fraud on his wife. If, then, the husband, as the agent of his wife, made this application in his wife’s name for the loan of the money, promising to deliver, and actually delivering, his wife’s bond and mortgage, the execution of which is admitted by her, to secure the repayment of the money borrowed, surely the plaintiff had a right to assume, in the absence of any evidence whatever to the contrary, that the money was being borrowed for the wife’s own use, upon the plain, common sense view that where one person applies to another for the loan of money, the lender has a right to assume, in the absence of anything being said or intimated to the contrary, that the borrow'er wants the money for his own use.
[186]*1863 [185]*185It is contended, however, that this doctrine, which it is claimed was for the first time laid down in Building and Loan Associa[186]*186tion v. Jones, supra, is in conflict with the rule laid down in Taylor v. Barker, 30 S. C., 242; McCord v. Blackwell, 31 Id., 135; Brown v. Thomson, Ibid., 442; and Gwynn v. Gwynn, Ibid., 482. But a careful examination of those cases will show that there is no sucli conflict. While it is true that inasmuch as a married woman has but a limited power to contract, a person dealing with her must take notice of such disability, and when he seeks to enforce his contract, the burden is upon him to show that the contract is one which a married woman is capable of making, yet how this may be shown is an altogether different question. Like every other fact necessary to be established in the trial of a case in court, it may be shown as well by circumstances as by direct evidence. The question in every case like the present is, first, a question of fact— whether the contract in question was a contract as to the separate estate of the wife. If it is, then the law declares that she is liable; but if it is not, then she is not liable, no matter how clearly she may have expressed her intention to make her separate estate liable; for after the fact is ascertained that the contract was not in reference to the separate estate of the wife, the question becomes a legal question of power, not of intention. Applying this doctrine to the case of a contract to secure the payment of money borrowed, the first inquiry is whether the money was borrowed for her own use; for if it was, then she would be liable; but if not, then she would not be liable, even though she may have expressly declared her intention to bind her separate estate in the obligation given to secure the repayment of the money borrowed, for the simple reason that in the latter case she had no power to make such a contract, and her intention to do that which she has no power to do, is wholly insufficient to bind her legally.
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 [187]*187which she herself had induced the lender or vendor to believe was true, upon the ground that it would be a fraud to allow her to repudiate a contract which she had induced the person with whom she dealt to believe she had the power to make, when as matter of fact she had no such power. She is estopped from disputing that the fact is as she represented it to be. But when it is once ascertained, as a matter of fact, that the contract in question was not made with reference to her separate estate, then nothing that she may do or say will'estop her from denying her legal liability under the fact thus ascertained. If, however, the person with whom she deals, notwithstanding her representation to the contrary, has notice that the contract is not a contract as to her separate estate, but is for the benefit of another, then no estoppel will arise, for the obvious reason that he has not been misled as to the fact, and he is bound to take notice of the legal disability of the married woman under the facts of which he has notice.
4 The following language used by this court in the case of Gwynn v. Gwynn, as reported in 27 S. C., at page 542, is quoted and relied upon by counsel for appellant: “It does not seem to us that there is any room for any estoppel. As we have seen, the question is one of power, not .of intention, and in the absence of any allegation and proof of fraud, we do not see how any representations, either by word or act, could affect the inquiry.” But it will be observed that this language was used after it had been ascertained that the contract there in question was not such a contract as a married woman was capable of making, and hence while that language v7as entirely appropriate to the case then under consideration, it has no application to the present case. There it was sought to make a married woman liable under a contract of partnership, and there was no question of fact there as to the nature, of the contract, while here the primary question is of fact. In that case, after reaching the conclusion that a married woman had no power to enter into a contract of partnership, it followed necessarily, as we have said above, that nothing which she may have afterwards said or done could affect the inquiry.
[188]*1885 [187]*187It seems to us, therefore, that there was no error on the part of the Circuit Judge in holding that the testimony was sufficient [188]*188to show that the money was borrowed by the defendant through her husband, as her agent, for her own use, and that she is therefore liable, unless it further appear that the plaintiff had notice at the time that the money was borrowed for the use of the husband. This brings us to the second question in the case. There is certainly no direct evidence of any such notice to the plaintiff. On the contrary, all the circumstances show that the plaintiff' had every reason to believe that the money was wanted for the use of the wife. The application for the loan was made in writing in her name, and her separate property was offered as security. ' Her bond and mortgage were delivered by one manifestly clothed with her authority as agent; for, as we have said, the admission in her answer of the execution of these papers necessarily implies, in view of the undisputed fact that they were delivered by her husband and not by herself in person, that he was her agent in making such delivery. The loan was charged on the books of the bank against Mrs. Luhn, and not against her husband, and this tends to show that the bank then regarded the transaction as a loan to her. But when to this is added the testimony of the cashier that Dr. Luhn stated at the time that the money was to be used in the erection of a building by Mrs. Luhn, we do not see how it is possible to doubt that, so far from the bank having any notice that the money was borrowed for the use of the husband, there was every .reason to believe that it was borrowed for, the use of the wife. The fact that the money was delivered to the husband cannot affect the question, for this was manifestly done because the bank regarded him as her agent, and had every reason to so treat him. While, therefore, we are not prepared to endorse the remark of the Circuit Judge, to the effect that she would bo liable ‘‘even if she had communicated the fact to the plaintiff that she intended to give the money to her husband,” yet we think the conclusion which he reached was correct, for the reasons stated above.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
Mr. Justice McGowan concurred in the result.