Bailey v. Seymour

• Decision Date: 12 September 1894
• Citation: 20 S.E. 62,42 S.C. 322
• Parties: BAILEY et al. v. SEYMOUR.
• Court: South Carolina Supreme Court

20 S.E. 62

42 S.C. 322

BAILEY et al. v. SEYMOUR.

Supreme Court of South Carolina

September 12, 1894

Appeal from common pleas circuit court of Laurens county; I. D Witherspoon, Judge.

Action by M. S. Bailey & Son against M. R. Seymour to foreclose a mortgage. Judgment for defendant, and plaintiffs appeal. Reversed.

F. P McGowan, for appellants.

C. J Hunt and Johnson & Richey, for respondent.

McIVER C.J.

This was an action to foreclose a mortgage of real estate executed on the 23d January, 1892, to secure the payment of a promissory note, bearing even date with said mortgage, for the sum of $450. The note was made by the defendant, M.R. Seymour, payable to one J.E. Griffin or order on the 15th day of November, 1892, and was by him indorsed in blank, and contained these words: "And I, M.R. Seymour, hereby charge may separate estate with the payment of this note." The mortgage recited as follows: "Whereas, I, the said M.R. Seymour, am well and truly indebted unto J.E. Griffin in the sum of four hundred and fifty dollars by virtue of a promissory note," and, after describing the note above referred to, proceeded in the usual from to convey the real estate in question to the said J.E. Griffin, to secure the payment of the said note, and contained the following declaration: "And I, the said M.R. Seymour, do charge my separate estate with the payment of said note, debt, mortgage, and all costs that may be incident to the collection of the same, if necessary; and I do declare that said debt is for the benefit of my separate estate." This mortgage contained the following words, indorsed thereon: "In consideration of four hundred and fifty dollars, paid me by M. S. Bailey & Son, bankers, I hereby sell, assign, transfer the within note and mortgage to M.S. Bailey & Son, without recourse, this January the 26th, 1892. [Signed] J. E. Griffin." The plaintiffs, having thus become the owners and holders of the said note and mortgage, instituted this action on the 5th of January, 1893, to foreclose said mortgage. The defendant answered, setting up sundry defenses, the main and only one passed upon by the circuit judge being that, inasmuch as the defendant was a married woman at the time, she had no power to make the contract evidenced by the note and mortgage upon which the action was based, because the said note was a mere accommodation note, made for the benefit of J. E. Griffin, who seems to be the son of the defendant, and used by him for the purpose of taking up a past-due note held by plaintiffs against said Griffin, upon which J. H. Wharton, Joseph Pearce, and F. D. Coleman were indorsers; and that defendant herself never received any benefit from the transaction. The testimony was taken by a referee, and the same is set out at length in the "case," together with sundry objections to the admissibility of portions thereof. The circuit judge, without passing directly upon the several objections to the testimony, sustained the defense above set out, and rendered judgment dismissing the complaint. From this judgment plaintiffs appeal upon the several grounds set out in the record, which, under the view we take of the case, need not be repeated here; for it seems to us that the controlling question is whether the circuit judge erred in holding that, under the facts as found by him, the defendant, being a married woman, had no power to make the contract sued upon.

We agree with the circuit judge that the case must be controlled by the provisions of the act of 1891 (20 St. 1121), which expressly invests a married woman with power "to bind herself by contract, in the same manner, and to the same extent, as though she were unmarried," except that she shall not have the power "to become an accommodation indorser, guarantor, or surety, nor shall she be liable on any promise to pay the debt or answer for the default or liability of any other person." The question, therefore is whether the facts as found by the circuit judge, viewed in the light of the settled rules of law, are sufficient to show that the contract in question falls within any one of the excepted class of contracts which a married woman is denied the power to make. The finding of the circuit judge upon this point is expressed in...