Aultman & Taylor Co. v. Gibert

• Citation: 5 S.E. 806,28 S.C. 303
• Parties: AULTMAN & TAYLOR Co. v. GIBERT et al.
• Decision Date: 28 March 1888
• Court: South Carolina Supreme Court

5 S.E. 806

28 S.C. 303

AULTMAN & TAYLOR Co. v. GIBERT et al.

Supreme Court of South Carolina

March 28, 1888

Appeal from common pleas circuit court of Abbeville county; T. B FRASER, Judge.

Action by Aultman & Taylor Company against Sarah J. Gibert and others to recover on a note, and to foreclose a mortgage given to secure the same. Judgment was rendered for plaintiff. Defendants Sarah J. Gibert and Lucy B. Mouchet appeal.

Graydon & Graydon, for appellants.

Perrin & Cothran, for respondent.

SIMPSON C.J.

In 1884, the defendants Sarah J. Gibert, B. E. Gibert, Sr., B E. Gibert, Jr., and W. S. Mouchet, executed a note to Mrs Fannie J. Marshall, of Abbeville county, for $1,250, payable in certain installments. The note was given in the purchase of a steam-engine and other machinery, to secure which the defendants joined in the execution of a mortgage covering a certain tract of land, or their interest therein, containing 150 acres, more or less. The note or obligation was assigned and delivered to the respondent in October, 1884. The first installment, which fell due 1st of January, 1885, not having been paid, suit was instituted by the respondent, and judgment obtained in February, 1885, for $765, including interest, fees, and costs, against Sarah J. Gibert, Benjamin E. Gibert, Jr., and W. S. Mouchet, and foreclosure ordered as to Sarah J. Gibert and Benjamin E. Gibert, Jr. No sale however, has been made of the interest of these parties under said foreclosure. The second installment became due 1st of July, 1885, which not being paid, the action below was instituted, demanding judgment of foreclosure as to the interests of the other mortgagors not included in the foreclosure above, to-wit, Jennie L. Gibert, A. E. Gibert, Lucy B. Mouchet, and Addie E. Gibert, and that the proceeds of sale be applied, after costs and expenses, to both of the installments above; the balance, if any, to be held in court to meet the installment to become due. Judgment was also demanded against Sarah J. Gibert, Benjamin E. Gibert, Jr., Benjamin E. Gibert, Sr., and W. S. Mouchet, for any balance that might remain due after said application of the proceeds of the land. The defense set up by all of the defendants was failure of consideration; and, in addition to this, the defendants Sarah J. Gibert and Lucy B. Mouchet interposed the fact that they were married women at the time the said note and mortgage were given. The master to whom the case was referred found, among other facts not necessary to be mentioned, that there was no breach of warranty; that Sarah J. Gibert and Lucy B. Mouchet were married women; and that Sarah J. Gibert was the purchaser of the machinery, and the principal in the note and mortgage. The circuit Judge, Hon. T. B. FRASER, who heard the case upon the report of the master, with exceptions, sustained the master in his findings of fact, and adjudged that plaintiffs have judgment against Sarah J. Gibert, Benjamin E. Gibert, Sr., Benjamin E. Gibert, Jr., and W. S. Mouchet, for the sum of $700, with interest, and also for $50 attorneys fee; and, further, that plaintiffs have judgment of foreclosure of the interest of the said Sarah J. Gibert, Benjamin E. Gibert, Jr., Lucy B. Mouchet, Jennie L. Gibert, A. E. Gibert, and Hugh R. Gibert, in the mortgaged premises described, and that they have order of sale for the same, giving leave to plaintiffs to issue execution for any deficiency after applying the proceeds of sale of the land, and allowing $50 fee for the attorneys. From this decree the married women, Sarah J. Gibert and Lucy B. Mouchet, have appealed; alleging error because his honor overruled defendants' exceptions, six in number, to the master's report, and five additional exceptions as to the rulings of his honor in the judgment pronounced. Four of the exceptions to the master's report involved questions of fact, to-wit: Whether Mrs. Gibert was the purchaser of the machinery; (2) whether the consideration of the note and mortgage had failed; (3) and consequently a breach of warranty; and whether the saw-mill was too heavy for the engine. As to these questions, inasmuch as we do not find an evident preponderance of testimony against the findings of the master concurred in by the circuit judge, under the well-established rule, they must stand as facts in the case. The other exceptions, including those to the decree, raise the question as to the liability of married women on mortgages, and also whether his honor erred in "giving leave to plaintiff to issue execution against Mrs. Gibert for the deficiency of the mortgage debt."

The legal existence of a married woman at common law was merged into that of her husband, and, as a general rule, she had no power to engage in business, purchase property, or make contracts of any kind; her conditions as to such matters being that of general disability. The constitution of 1868, art. 14, § 8, made a change as to her property, declaring all property held by her at her marriage, or acquired by her either by gift, grant, inheritance, devise, or otherwise, should be her separate estate, in no way liable for the debts of her husband. After this provision as to the status of her property, it further provided that she should have the power to bequeath, devise, and alienate said property the same as if she was unmarried. Subsequent to the adoption of the constitution, married women, by act of assembly, were empowered (section 2037) to purchase any species of property in their own name, and take proper and legal conveyances therefor, and to contract and be contracted with as to their separate property in the same manner as if they were unmarried. Now, Mrs. L. B. Mouchet, appellant, did not sign the note sued on. She, however, joined in the mortgage. She then occupies the position of having given a mortgage to secure the debt of another, being a married woman at the time. Such being the case, her appeal is fully sustained by the principles announced in Habenicht v. Rawls, 24 S.C. 461; Aultman & Taylor Co. v. Rush, 2 S.E. Rep. 402; and Gwynn v. Gwynn, 4 S.E. Rep. 229, and we need do no more, therefore, than to refer to said cases.

There is a difference, however, as to appellant, Mrs....