The opinion of the Court was delivered by
Mr. Chief Justice McIver.
Without undertaking to make any detailed statement of the facts of this case, we propose to state certain facts appearing in the record of this case, most, if-not all, of which are undisputed, which, it seems to us, should be kept in mind while considering the questions presented by this appeal. Some time in the year 1877 the plaintiff intermarried with the testator, Joseph S. McKenzie, and the parties for several years lived together, [465]*465as man and wife, until some time in the year 1891 — probably about the 12th of January — when the}^ separated. Very soon thereafter — certainly as early as the 13th of February, 1891 — negotiations were opened between these parties looking to a final separation and a final settlement of all claims which the plaintiff had against her said husband, growing out of the fact that he had been her guardian, and as such had received certain moneys belonging to her as her separate estate, which had remained in his hands as her agent, after she attained her majority, as well as claims for the rents of a certain tract of land belonging to her separate estate. In these negotiations, which were conducted mainly in writing, the plaintiff was represented by Mr. C. E. Spencer, as her counsel, and the testator, Jos. S. McKenzie, was represented by Major James F. Hart, as his counsel. In the first letter, bearing date the 13th of February, 1891, which, though not addressed to any one on its face, was manifestly intended for Jos. S. McKenzie, as shown by its contents, as well as testified to by Mr. Spencer, which is signed by Mr. Spencer, he says: “After conferring with your wife, I am authorized to say, that she will give you a discharge as her agent, if you will account to her for the following sums and interest (specifying dates and amounts and the net rents of her laud, which are left blank), and give back to her personal property that she took with her to your home and bought subsequently” (specifying the different articles). To this letter no reply appears in the “Case,” but it does appear, both 'from the testimony of Mr. Spencer and Major Hart, that there were verbal negotiations between these gentlemen, in which the only point of difference seemed to be, whether the husband was liable for interest on his wife’s money in his hands or for the rent of her lands. The next step in the negotiation is a letter from Mr. Spencer to Major Hart, in which he says that Mrs. McKenzie declined the offer of $2,000, which seems to have been made by Mr. McKenzie, and adds these words: “Mrs. McKenzie’s money and interest will amount to something over $3,000. What[466]*466ever she is entitled to recover will not affect her right to dower or to a support during the separation. These two items alone are worth $1,000, and 'her estate without interest will be $2,000. Accordingly, she authorizes me to offer.to give “a release for all moneys and for future support, and also to renounce all dower in his lands, upon the payment of $3,000, with interest from the day she left his house.” This offer was subsequently amended by a writing signed by Mr. Spencer, with the written approval of Mrs. McKenzie, bearing date 15th May, 1891, by which the interest on the $3,000 was to run from said last mentioned date. This offer was accepted in writing by Major Hart for Mr. McKenzie, with the written approval of Mr. McKenzie. In pursuance of this negotiation thus above set forth, omitting certain minor modifications as to the specific articles of personal property .claimed by the wife, as well as to the rents of her land for the year 1891, which are really not pertinent to the questions presented by this appeal, the two papers, copies of which should be set out in the report of this case, were executed by the parties on the 13th of June, 1891. These two papers, for convenience of reference, will be designated, the one as the indenture and the other as the covenant. As is stated by his Honor, Judge Ernest Gary, in the first paragraph of his decree, from which this appeal is taken, the object of this action is to have the paper designated as the covenant “declared null and void, on the ground that the same, as to the plaintiff, is nudum pactum, the same having been delivered without any consideration.” And in the concluding part of his decree, after having set forth the proceedingsinaformeractionheard by his Honor, Judge Benet, as to the validity of the other paper — the indenture — he finds that the consideration that moved the execution of the indenture was the same as that of the covenant, and then uses this language: “I, therefore, hold that the alleged covenant of the plaintiff is without consideration, and as to her nudum pactum, on the same ground that the indenture of settlement and separation was held to [467]*467be.” These quotations from the decree of the Circuit Judge show conclusively that he rested his judgment solely upon the ground that the covenant was nudum pactum, without consideration, as to the plaintiff; and an examination of his entire decree, which should be set out in the report of this case, will show that the Circuit Judge nowhere considered or decided the question whether the covenant was void because executed by a married woman; and the counsel for respondent has not, in accordance with the proper practice, given notice that he will ask this Court to sustain the Circuit decree upon that ground. Hence that question is not before this Court under this appeal, and need not, therefore, be considered.
1 As we understand it, the sole question presented by this appeal is, whether the Circuit Judge erred in holding that the covenant, which is here in question, should be declared null and void as to the plaintiff, for the reason that, as to her, it was executed without any consideration. This question, as it seems to us, must be decided by the testimony adduced in this case, without reference to the testimony adduced in another case, involving a different and distinct issue from that presented in the case now under consideration. In the former case, heard by Judge Benet, the question was, whether the indenture could operate as a bar, either by way of estoppel or otherwise, to the claim of the plaintiff there set up; and it was held that it could not, because, as against the plaintiff, such indenture, being without consideration, was a nullity. That question, and that alone, was conclusively determined by the decree of Judge Benet, and hence every party to that action would be estopped, upon the doctrine of res adjudicata, from afterwards raising that question. But how that decree could estop the defendants here from raising another question, in regard to the validity of another paper, which was not considered or passed upon, not even mentioned or alluded to, in the former action, is something that we are unable to understand. It may be that the evidence was [468]*468sufficient to show in the former case that the indenture was without consideration, and yet it would by no means follow that the evidence in this case was sufficient to show, that the covenant was without consideration. It is true, that both of these papers were executed on the same day, and even if it should be conceded that they both arose out of the same transaction, though the testimony in this case might leave that matter open to question, still these circumstances would not be sufficient to show that the covenant was without consideration, simply because it had been shown in another case that the indenture was without consideration.
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The opinion of the Court was delivered by
Mr. Chief Justice McIver.
Without undertaking to make any detailed statement of the facts of this case, we propose to state certain facts appearing in the record of this case, most, if-not all, of which are undisputed, which, it seems to us, should be kept in mind while considering the questions presented by this appeal. Some time in the year 1877 the plaintiff intermarried with the testator, Joseph S. McKenzie, and the parties for several years lived together, [465]*465as man and wife, until some time in the year 1891 — probably about the 12th of January — when the}^ separated. Very soon thereafter — certainly as early as the 13th of February, 1891 — negotiations were opened between these parties looking to a final separation and a final settlement of all claims which the plaintiff had against her said husband, growing out of the fact that he had been her guardian, and as such had received certain moneys belonging to her as her separate estate, which had remained in his hands as her agent, after she attained her majority, as well as claims for the rents of a certain tract of land belonging to her separate estate. In these negotiations, which were conducted mainly in writing, the plaintiff was represented by Mr. C. E. Spencer, as her counsel, and the testator, Jos. S. McKenzie, was represented by Major James F. Hart, as his counsel. In the first letter, bearing date the 13th of February, 1891, which, though not addressed to any one on its face, was manifestly intended for Jos. S. McKenzie, as shown by its contents, as well as testified to by Mr. Spencer, which is signed by Mr. Spencer, he says: “After conferring with your wife, I am authorized to say, that she will give you a discharge as her agent, if you will account to her for the following sums and interest (specifying dates and amounts and the net rents of her laud, which are left blank), and give back to her personal property that she took with her to your home and bought subsequently” (specifying the different articles). To this letter no reply appears in the “Case,” but it does appear, both 'from the testimony of Mr. Spencer and Major Hart, that there were verbal negotiations between these gentlemen, in which the only point of difference seemed to be, whether the husband was liable for interest on his wife’s money in his hands or for the rent of her lands. The next step in the negotiation is a letter from Mr. Spencer to Major Hart, in which he says that Mrs. McKenzie declined the offer of $2,000, which seems to have been made by Mr. McKenzie, and adds these words: “Mrs. McKenzie’s money and interest will amount to something over $3,000. What[466]*466ever she is entitled to recover will not affect her right to dower or to a support during the separation. These two items alone are worth $1,000, and 'her estate without interest will be $2,000. Accordingly, she authorizes me to offer.to give “a release for all moneys and for future support, and also to renounce all dower in his lands, upon the payment of $3,000, with interest from the day she left his house.” This offer was subsequently amended by a writing signed by Mr. Spencer, with the written approval of Mrs. McKenzie, bearing date 15th May, 1891, by which the interest on the $3,000 was to run from said last mentioned date. This offer was accepted in writing by Major Hart for Mr. McKenzie, with the written approval of Mr. McKenzie. In pursuance of this negotiation thus above set forth, omitting certain minor modifications as to the specific articles of personal property .claimed by the wife, as well as to the rents of her land for the year 1891, which are really not pertinent to the questions presented by this appeal, the two papers, copies of which should be set out in the report of this case, were executed by the parties on the 13th of June, 1891. These two papers, for convenience of reference, will be designated, the one as the indenture and the other as the covenant. As is stated by his Honor, Judge Ernest Gary, in the first paragraph of his decree, from which this appeal is taken, the object of this action is to have the paper designated as the covenant “declared null and void, on the ground that the same, as to the plaintiff, is nudum pactum, the same having been delivered without any consideration.” And in the concluding part of his decree, after having set forth the proceedingsinaformeractionheard by his Honor, Judge Benet, as to the validity of the other paper — the indenture — he finds that the consideration that moved the execution of the indenture was the same as that of the covenant, and then uses this language: “I, therefore, hold that the alleged covenant of the plaintiff is without consideration, and as to her nudum pactum, on the same ground that the indenture of settlement and separation was held to [467]*467be.” These quotations from the decree of the Circuit Judge show conclusively that he rested his judgment solely upon the ground that the covenant was nudum pactum, without consideration, as to the plaintiff; and an examination of his entire decree, which should be set out in the report of this case, will show that the Circuit Judge nowhere considered or decided the question whether the covenant was void because executed by a married woman; and the counsel for respondent has not, in accordance with the proper practice, given notice that he will ask this Court to sustain the Circuit decree upon that ground. Hence that question is not before this Court under this appeal, and need not, therefore, be considered.
1 As we understand it, the sole question presented by this appeal is, whether the Circuit Judge erred in holding that the covenant, which is here in question, should be declared null and void as to the plaintiff, for the reason that, as to her, it was executed without any consideration. This question, as it seems to us, must be decided by the testimony adduced in this case, without reference to the testimony adduced in another case, involving a different and distinct issue from that presented in the case now under consideration. In the former case, heard by Judge Benet, the question was, whether the indenture could operate as a bar, either by way of estoppel or otherwise, to the claim of the plaintiff there set up; and it was held that it could not, because, as against the plaintiff, such indenture, being without consideration, was a nullity. That question, and that alone, was conclusively determined by the decree of Judge Benet, and hence every party to that action would be estopped, upon the doctrine of res adjudicata, from afterwards raising that question. But how that decree could estop the defendants here from raising another question, in regard to the validity of another paper, which was not considered or passed upon, not even mentioned or alluded to, in the former action, is something that we are unable to understand. It may be that the evidence was [468]*468sufficient to show in the former case that the indenture was without consideration, and yet it would by no means follow that the evidence in this case was sufficient to show, that the covenant was without consideration. It is true, that both of these papers were executed on the same day, and even if it should be conceded that they both arose out of the same transaction, though the testimony in this case might leave that matter open to question, still these circumstances would not be sufficient to show that the covenant was without consideration, simply because it had been shown in another case that the indenture was without consideration. Judge Benet, in his decree in the former case, speaking of the indenture, says: “The testimony shows that at the date of its execution, McKenzie was indebted to his wife in the sum of $3,113, and, also, it must be held, in the further sum of $730 for rents received by him from her 200 acres of land.” But, in this case, the testimony fails to show anything of the kind. The most that can be said is, that, in the outset of the negotiations above referred to, Mr. Spencer, representing Mrs. McKenzie, claimed that her husband was indebted to her in the principal sum of $1,961.78 and interest, besides the net rents of her land, the amount of which was not stated; but Mr. Hart denied this claim, so far as the interest and rents were concerned, and, according to Major Hart’s testimony, which Mr. Spencer does not deny, Mr. Spencer yielded to the position taken by Major Hart; and this is confirmed by the letter of Mr. Spencer, of the 3d of May, 1891, above referred to, in which he abandons the claim for interest and-rents, and substitutes, in lieu thereof, a claim for dower and support during the separation, which, he says, are worth $1,000, and upon those terms the settlement was finally effected. It is true, that Mrs. Tate, the mother of Mrs. McKenzie, does testify that she heard Mr. McKenzie say that he was willing to give Mrs. McKenzie all the money that was due her, as well as the interest thereon; but this was manifestly said before the negotiations for a settlement were opened, and before any demand [469]*469had been made upon him for alimony or support during the separation. At all events, when the settlement was made and reduced to writing, the claim for interest and rents seems to have been abandoned. Indeed, so far as we can perceive from the testimony in this case, the only point of difference between the counsel for the respective parties— the husband and the wife — was, whether the husband was liable for the interest on his wife’s money, which had been allowed to remain in his hands, or for the rents of her land, which he had been allowed to receive; and as to that it is not difficult to understand how, in view of the cases of Reeder & Davis v. Flinn, 6 S. C., 216, and McLure v. Lancaster, 24 S. C., 273, there might well have been an honest difference of opinion between those counsel, as to whether the husband was liable, either for interest or rents. We find it altogether impossible to believe that, in this settlement, where the respective parties were represented by experienced, able counsel, of unquestioned character, any improper advantage was taken of either party. The most that can be said is, that a claim which was certainly disputed, if not doubtful, was yielded in a proper spirit of compromise. We cannot, therefore, concur in the conclusion that the covenant was without consideration, and for that reason should be set. aside.
If it should be said that this view is in conflict with the conclusion reached in the former case, in which the validity of the indenture only was involved, we have only to say, as we have said above, that while the judgment in the former case, upon the doctrine of res adjudicata, would estop any of the parties to that case from raising any question as to the validity, of the indenture, it does not estop them from now contending for the validity of another paper— the covenant — executed for another purpose. The object of the one paper — the indenture — was to release Mr. McKenzie from any claim which his wife might have against him on account of her separate estate, as well as from any claim for alimony; while the object of the other paper — the cove[470]*470uant- — was to bind Mrs. McKenzie to renounce her inchoate right of dower, whenever called upon to do so. It is also to be noted that the judgment in the former case became binding on the parties to that action, so far as the validity of the indenture is concerned, not by the action of this Court, but simply by the operation of the Circuit decree in that case, from which there was no appeal, except upon a ground which in nowise affects the question here considered. The case, as reported in 45 S. C., 496, shows very clearly that neither this Court nor any member thereof considered or expressed any opinion whatever as to whether Judge Benet was right or wrong in reaching the conclusion that the indenture was without consideration, for the very obvious reason that no such question was then before the Court. We have, therefore, felt no hesitation in this case in considering the whole question of consideration, taking care, however, to limit the effect of the conclusion which we have reached to-the paper — the covenant — which was not in issue in the former case, but which is in issue in this case.
2 But, it seems to us, in any view of the case, the plaintiff is not entitled to retain the judgment she has obtained, unless she refunds the money which she acknowledges having received as the consideration of the covenant. In that paper, she recites that she had received “a sum of money approximating one thousand dollars,” and there is no testimony in conflict with that recital. Mrs. McKenzie herself, though examined as a witness in this case, does not deny that she received this money. The amount thus stated exceeds the value of her inchoate right of dower, as estimated by her own counsel, Mr. Spencer; for, in his letter of the 8th of May, 1891, .above referred to, after speaking of the amount due Mrs. McKenzie on account of her separate estate, he says: this “will not affect her right to dower, or to a support during the separation; these two items alone are worth $1,000,” showing very clearly that the inchoate right of dower, by itself, was not estimated to be worth as much as $1,000. If, therefore, she received [471]*471this sum of money as the consideration of her covenant to renounce her dower, surely she ought, upon the plainest principles of equity, to be required to refund the money so received, before she can have the covenant annulled. We do not see how the finding of Judge Benet, in the former case, in reference to this matter, to the effect that the sum of one thousand dollars should be regarded as representing the interest and rents, can affect this case. But, in addition to this, the testimony in this case, as we have seen, shows that the claim for interest and rents had been abandoned, and, therefore, it is impossible to assume, in this case, that the one thousand dollars mentioned in the covenant, as having been received by Mrs. McKenzie, represented the interest and rents.
The judgment of this Court is, that the judgment of the Circuit Court be reversed, and the case be remanded to that Court for a new trial, when the plaintiff may, if so advised, have the question whether the covenant should be set aside because the plaintiff was a married woman at the time she executed it, determined, which question has not been made by this appeal, and has not, therefore, been considered.