Schamp v. Security Savings & Loan Ass'n

28 S.E. 709, 44 W. Va. 47, 1897 W. Va. LEXIS 91

• Court: West Virginia Supreme Court
• Decided: November 20, 1897
• Status: Published

Opinions

Brannon, Judge:

By deed dated 27th April, 1892, Elizabeth V. Schamp and her husband conveyed to Charles W. Barrick,- trustee, a tract of land, by deed of trust, to secure the Security Savings & Loan Association a loan of money, and later Mrs. Schamp brought a chancery suit to cancel the deed, and obtained a decree canceling it, and the association appealed. The claim of Mrs. Schamp-for relief is based on the contention that the deed of trust is void, because, as she was a married woman, it was contrary to section 12, c. 66, Code 1891. That section provides that “a married woman may charge her separate property and estate, real and personal, and the rents, issues, profits and increase thereof with the payment of her debts, in the following cases, in the following manner, and to the following extent, and not otherwise: First. A debt created in the purchase of real or personal property to he held as her separate property and estate. Second. A debt created for building's and other improvements erected and made on her separate real property, and for money borrowed by her for the payment of the purchase money of such real property, or for the payment of such buildings and improvements thereon. But every such charg-e must be evidenced by a writing duly executed and acknowledg-ed by her and duly recorded in the proper clerk’s office, stating- the amount of the debt and for what it was created. Third. A debt created for the wag-es of a laborer or domestic for work or service done or performed for her. Fourth. A debt created by her in carrying on any trade or business, as provided for in the next section. * * * Fifth. A debt created by her for the necessaries of life for herself and her children.” The construction of this statute, as I see it, is that a married woman is totally prohibited from charging her estate with any debt except in the cases specified in the statute. Those cases are exceptions out of the disability created for her by the statute. For you will observe that the statute says that she may charg-e her estate “in the following cases, in the following- manlier, and to the following extent, and not otherwise.” It specifies the cases. It specifies .for some cases a manner of charging, and by the use of the words, and not otherwise, it prohibits any other charges than those made valid by itself. I repeat that it disables her with certain exceptions, and he who would charge her estate with a debt must bring- himself within those exceptions; and if the charge is to be sustained by the second clause, it must be shown to come under it by the instrument making the charge, and it alone.

The deed of trust in this case says that the debt created by Mrs. Schamp was a loan. The defendant’s answer says that at the time of the loan Mrs. Schamp informed the defendant that the money was to be used in paying a five hundred dollars deed of trust existing on the land, and for improving the farm. Thus the answer shows that part of the money was to go to a purpose for which she could not borrow, because the statute does not authorize her to borrow to remove a pre-existing lien, except for purchase money, and it is not shown to be for purchase money. There are only two borrowings valid by the statute; that is, to pay purchase money for realty or for buildings and improvements. And, as to the use of the money for improvements, that very fact demanded that the deed of trust should declare that the money was to be used for improvements, and it does not. I say the answer admits notice to the company that the money was to be used for improvements, and it relies ixpon that fact, and that fact alone requires its statement of such purpose in the deed; the answer thus stating a use for part of the money for which it could not be borrowed, and as to the other a use that must be specified in the deed. While in the case of a valid loan the loaner need not see that the married woman applies the money to the proper uses, still, if he knows of an improper use, he violates the statute. By improper use I mean a loan not recognized by the statute; and surely, where the loaner knowrs the money is to be used for paying purchase money for realty, or for payment of buildings and improvements, he must put that purpose in the deed of trust. It cannot be said that this loan is valid because used in acquiring personal estate. A debt may be created in the very act of acquiring personal or real estate, but there can be no borrowing for the purpose of acquiring personality, or to pay a debt existing for its prior purchase, for the power to borrow is limited to the purposes of paying purchase money on realty or for improvements on it. No other borrowing is legitimate under the statute. This was purely a loan. The law can look at it in no other light. It was not to pay for stock. It could not be,' for the answer and other papers show that the purchase of the stock had been made before, and there can be no loan to pay a preexisting- debt for purchase money of personalty, nor, indeed, to purchase it. I cannot agree with the view ol Judge Dent that only pre-existing debts, and not fresh loans, come under the ban of this statute. He suggests the only ground to sustain this deed, but I respectfully say that it is not tenable. This statute was made to defend a married woman’s separate property against her own improvidence, want of business capacity, and importunity and duress by her husband. And we all know that there is more danger of loss of a married woman’s estate from new loans than from old debts. She is not very likely to charge her property with previous debts, but we will all know how likely she is to do so under the stress and pinch of present need of herself or her husband. There was really much more need to defend her against poverty and ruin from loss of her separate estate, from new loans, than from antecedent debts; and, if the statute is given the construction that it applies only to such prior debts and not to new loans, it emasculates it of its strength, and defeats its plain purpose. Decree affirmed.