38 S.E. 462 (S.C. 1901), Singleton v. Singleton

Citation:38 S.E. 462, 60 S.C. 216
Opinion Judge:POPE, J.
Party Name:SINGLETON et al. v. SINGLETON.
Attorney:Wm. M. Shannon, for appellant. B. B. Clarke, M. L. Smith, and J. T. Hay, for respondents.
Case Date:April 08, 1901
Court:Supreme Court of South Carolina
 
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Page 462

38 S.E. 462 (S.C. 1901)

60 S.C. 216

SINGLETON et al.

v.

SINGLETON.

Supreme Court of South Carolina

April 8, 1901

Appeal from common pleas circuit court of Kershaw county; J. C. Klugh, Judge.

Suit by Howard C. Singleton and another against Esther Singleton, individually and as administratrix of the estate of Robert Singleton, deceased, to set aside a mortgage. From a decree in favor of plaintiffs, defendant appeals. Reversed.

Page 463

The following is the report of the master:

"This is a suit brought by the plaintiffs, H. C. Singleton [60 S.C. 217] and J. A. Singleton, to have a mortgage, which is a cloud upon the title to a certain piece of real estate owned by them, declared null and void, and canceled; the defendant asking that said mortgage be foreclosed. One A. E. Singleton, the mother of the plaintiffs, was at the time of her death, on June 8, 1893, the owner in fee simple of the real estate in question, a lot and storehouse in Camden, S.C. Said A. E. Singleton died intestate, leaving surviving her, as her heirs at law and distributees, her husband, Robert Singleton, and her two sons, H. C. Singleton and J. A. Singleton, the plaintiffs herein. On September 1, 1891, said A. E. Singleton executed and delivered to one Woodward Holland her bond in the penal sum of $1,610, conditioned for the payment of the sum of $805, due and payable as follows: $420 September 1, 1892, with interest after maturity at the rate of 8 per cent. per annum, and $385, with interest at the same rate, on September 1, 1893,--and, in order to secure the payment of said bond, executed a mortgage to said W. Holland on the real estate in question. On October 21, 1893, said mortgage was assigned by said W. Holland to R. Singleton upon the payment by said R. Singleton of $843.20; and on December 15, 1893, R. Singleton assigned said mortgage to said Esther Singleton, his second wife, the defendant herein. No consideration passed for said assignment, it being a deed of gift.

It appears that, after the second marriage of R. Singleton, he and his sons, the plaintiffs, became involved in a disagreeable dispute over the settlement of the estate of A. E. Singleton, deceased, of which dispute Esther Singleton was cognizant. R. Singleton and his sons finally settled their difference by the said R. Singleton making to H. C. and J. A. Singleton a deed of his interest in said real estate to take effect upon his death; plaintiffs, in consideration of same, making a deed to him for his life of their two-thirds interest in said real estate, said deeds bearing date January 5, 1894. The deed of R. Singleton to plaintiffs contained the usual general warranty clause, and Esther Singleton renounced her dower to same. It is an undisputed fact from the [60 S.C. 218] evidence that at the time of the execution of said deeds the plaintiffs did not know of the assignment of bond and mortgage to Esther Singleton; and in fact the testimony is that, before H. C. Singleton signed deed, R. Singleton was asked if the W. Holland mortgage was paid, and R. Singleton replied that it was paid. There is no testimony as to whether or not R. Singleton was asked about assignment of mortgage to him by W. Holland. The mortgage was duly recorded on September 5, 1891, but the two assignments were not recorded until May 30, 1898, after the commencement of this action. There does not appear, however, to have been any secrecy about the assignment of mortgage by Holland to R. Singleton. The witness E. C. Zemp, cashier of the Farmers' & Merchants' Bank, testified that R. Singleton spoke to him about assignment the day before said assignment was executed, and the money was paid to Holland by a check on bank. Both W. Holland and R. singleton died before the commencement of this suit.

The plaintiffs contend that this mortgage is null and void, and should be canceled for various reasons. The plaintiffs first attack the mortgage under the married woman's law. They claim that said mortgage was given to secure a loan made for the purpose of obtaining money to pay the debts of R. Singleton. There is no question as to the fact that when A. E. Singleton executed bond and mortgage she was married to R. Singleton. Although this mortgage was executed in 1891, it cannot be considered under the act of 1887, as the mortgage did not declare that it was the intention of mortgagor to bind her separate estate, and therefore this mortgage will have to be considered under the act of 1882. This case is peculiar, in that the mortgagor, A. E. Singleton, her husband, R. Singleton, and the mortgagee, W. Holland, the parties to the transaction, are all dead, and therefore it is impossible

Page 464

to get direct testimony on the material questions in issue.

The mortgagor not having declared her intention of binding her separate estate, and the burden of her proof being in the first instance [60 S.C. 219] upon the holder of the mortgage to show that the money was borrowed from Holland by A. E. Singleton, or through her husband as her agent, and the defendant having failed to make such proof, the mere fact of mortgagor having executed mortgage, and the loan having been made, will not of itself be sufficient to make said money a part of the separate estate of A. E. Singleton, and the claim for same enforced against her, regardless of the disposition of the money, and this case is for that reason to be distinguished from the case of Institution v. Luhn, 34 S.C. 175, 13 S.E. 357, and the case of Mortgage Co. v. Deas, 35 S.C. 43, 14 S.E. 486. We therefore have to fall back upon the doctrine laid down in Habenicht v. Rawls, 24 S.C. 461, and reaffirmed in numerous other cases not necessary to be reviewed here, that it is not so much the intention of the married woman to bind her separate estate as it is her power to do so,--whether or not the contract was for the benefit of her separate estate; if not, it could not be binding upon her separate estate. It has been decided in the case of Pelzer v. Durham, 37 S.C. 354, 16 S.E. 46, that the party seeking to recover upon a married woman's contract must show by evidence, direct or circumstantial, that the contract was made with reference to her separate estate. Now, has the defendant shown that the bond and mortgage executed by A. E. Singleton to Holland was for the benefit of her separate estate? It has not been clearly so shown by direct evidence, but, as direct evidence is impossible in this case, circumstantial evidence has to be relied on. The evidence shows that the mortgage was executed September 1, 1891; that prior to that time R. Singleton had been conducting a bakery and grocery business in Camden in the store on the mortgaged premises; that on October 23, 1891, A. E. Singleton started business with George W. Steffens' Sons, of Charleston, and continued to do business with them until March 1, 1894; that on September 25, 1891, John C. Weiters, of Charleston, a wholesale grocer, sold A. E. Singleton a bill of goods amounting to $308.29, of which $275 was paid on the same day and the balance still[60 S.C. 220] remains unpaid. The testimony of the cashier of the Bank of Camden, and the books of the bank, show that in the fall and winter of 1891 and the winter and spring of 1892 numerous collections came to the bank from business houses against A. E. Singleton. The city recorder and the county auditor testify as to the tax returns of the Singletons, which shows that all property, real and personal, including merchandise, was returned in the name of A. E. Singleton for the years 1890, 1891, and 1892, and that the name of R. Singleton did not appear upon the tax books as a taxpayer for those years. So it seems very plain that the business was conducted by A. E. Singleton from about September, 1890. And, under the circumstances, I think the circumstantial evidence sufficient to prove the fact that the mortgage was executed, and the money used, the greater part for the benefit of the separate estate of A. E. Singleton.

It has been decided in the case of Brown v. Prevost, 28 S.C. 123, 5 S.E. 274, and other cases, that when a mortgage is given by a married woman, and it is proved that part of the money borrowed was for the benefit of her separate estate and part to pay the debts of her husband, her separate estate can only be held liable for the amount used for the benefit of her separate estate. Was any of the money borrowed from Holland used to pay the debts of R. Singleton? J. A. Singleton testifies that the money was borrowed to pay the debts of R. Singleton, but did not specify a single debt that was paid or a single debt that R. Singleton, owed. Defendant objects to this testimony, under section 400 of the Code. But I hold that as the witness testified to a conversation, not between himself and a deceased party, but between a party deceased and another party (A. E. Singleton and R. Singleton), although witness is an interested party he is competent to testify to such conversation. The sixth paragraph of the synopsis of the...

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