Brice v. Miller

• Decision Date: 23 March 1892
• Parties: BRICE et al. v. MILLER.
• Court: South Carolina Supreme Court

15 S.E. 272

35 S.C. 537

BRICE et al. v. MILLER.

Supreme Court of South Carolina

March 23, 1892

Appeal from common pleas circuit court of Fairfield county; KERSHAW Judge.

Action by Calvin Brice & Co. against Elizabeth Miller on two notes. Judgment for plaintiffs. Defendant appeals. Affirmed.

The following are the defendant's exceptions:

"(1) For that his honor should have sustained the oral demurrer of the defendant. (2) For that his honor erred in allowing the plaintiff Mr. Brice, on redirect examination, to testify, over the objection of counsel for defendant, as to the facts and circumstances under which the defendant, a married woman, executed the notes put in evidence. (3) For that his honor erred in permitting the plaintiff, over the objection of counsel for defendant, to testify that Mrs. Mary Miller had conveyed all of her property, both real and personal, to the defendant, coupled with a secret trust to pay his (plaintiff's) debt, and that it was in pursuance of this arrangement that defendant, a married woman, executed these notes to pay her husband's store account; such testimony tending to vary a written instrument, and being obnoxious to the statute of frauds, as tending to establish a trust in land by parol evidence. (4) For that his honor erred in permitting the plaintiff to testify that he went to see Mrs. Mary Miller about the debt, and that she stated to him that it was a just and honorable debt, and must be paid; and that she (Mrs. Mary Miller) then gave defendant the property charging it with the payment of his debt; (she, Mrs. Mary Miller, being then deceased.) (5) For that his honor erred in permitting the plaintiff, over the repeated objections of counsel for defendant, to testify to transactions and communications with Mrs. Mary Miller, a person then deceased. See record. (6) For that his honor erred in permitting the plaintiff to testify his recollection as to what the defendant said while testifying on a former trial of this cause, her testimony being in writing, and preserved as the records of the court, and she being then in court, and subject to examination by him. (7) For that his honor erred in permitting counsel for the plaintiff to ask him, (the plaintiff,) his own witness, the following questions '(a) And you state that Mrs. Mary Miller had assumed the payment of these debts? (b) I will ask you this question: Do you remember whether or not she stated that she bought that property from Mrs. Mary Miller, or whether it was left to her to pay those debts? (c) You say there were three hundred acres? (d) And, with the mill, it was worth $11 per acre? (e) And, without it, $7 or $8?' (8) For that his honor erred in charging the following: 'Looking at the circumstances here, in the light of testimony as it is said by witnesses there is evidence tending to show that there was a good old lady, a Mrs. Mary Miller, the mother of the defendant's husband, the old lady who owned all the property, and she determined at an advanced era in her life to go to Florida, but with a very great propriety on her part she desired to settle her affairs before she went to Florida; that is, the testimony tends to show that. *** Then there were some debts that she was anxious to pay. As has been said, she was not bound to pay the debts, but she was an old lady, who was so conscientious that she desired to pay these debts, otherwise there might be some legal proceedings which would throw her estate into confusion, and she wanted to settle all those things before she left. I think it was a prudent thing for her to do.' (9) For that his honor erred in charging the following: 'But, any way, she [Mrs. Mary Miller] made an arrangement which was satisfactory to herself, satisfactory to her creditors, and satisfactory to the heirs of the estate. There was no dissatisfaction at that time.' (10) For that his honor erred in charging the following: 'And if Mrs. Miller, urged by her husband or anybody else, or without being urged, thought that she would get possession and control of this property, put it on her land which her mother had deeded to her, and in order to do that she made this note and mortgage, why, then I think she is liable, and the plaintiff ought to have a verdict.' (11) For that his honor erred in charging the following: 'Now, one more thing: I would say that whenever a person signs a mortgage,--gives a note and signs a mortgage,--and in that mortgage represents him or herself to be the owner of the property upon which they put the mortgage, then they are estopped the denial.' (12) For that his honor erred in charging the jury in this, the following: 'If a man should act and pretend to be the owner of a piece of property, and mortgage it, and then try to get out of paying for it by saying that the property was not his, he cannot do so. Estoppel is the principle of law that does not allow a man to state the truth, and a man is allowed to state only the truth against his own debt.' (13) For that his honor erred in refusing defendant's first request to charge, and also in charging the jury that, if defendant became a trustee, and took possession of property charged with the payment of the debt, she thereby became generally liable for the payment of such debt. (14) For that his honor erred in charging the jury upon the law as to the burden of proof."

The following is the charge of the court:

"Gentlemen of the jury: At the commencement of this suit at this term, when you were impaneled as the jury in this case, the foreman was excused, was taken off; so that the first thing you will do when you go into your room will be to elect a foreman. You will choose some one to act as foreman who will preside over your deliberations, and sign your verdict when you arrive at one. This action is

founded upon two notes; notes which the defendant here, Mrs. Elizabeth Miller, does not deny that she made. She made those notes, together with the mortgages of which they are a part, and delivered them to Brice & Co., who are the plaintiffs here. In the case of a man, that would be the end of it; but in the case of a married woman it is necessary to go further than that, because a married woman has but a limited power to contract. A married woman may make many notes, without being bound by them, unless they are made with reference to her separate estate; and that grows out of the fact that the constitution now in force--the constitution adopted about 1867 or '68--changes our law with reference to the powers of married women. Before that time, as some of you who lived before that time can probably recall, a married woman could not make a contract like this in the ordinary run of business. The property that she had became, by marriage, the property of her husband; and even where she had a separate estate she could only charge the especial estate in some way which the court of equity would recognize. But she had not the power of contracting generally, as a single woman would have, or a single man. That constitution declared that the property of a married woman, which she then owned, or which she acquired after her marriage, during the life of her husband, should constitute her separate estate; so, after that constitution was adopted, whatever property a married woman had was her separate estate, which could not be charged by her husband's contracts; but she was allowed, herself, by her contracts with relation to it, to bind her separate estate, and her contracts made that way could be enforced in a court of justice; but if they were not made with regard to her separate estate, then they had no validity. So where you prove a note made by a married woman it is not enough, but you must go further, and show that that note was made with reference to her separate estate, and if she incurred the obligation with reference to her separate estate it became binding as in other cases. So, if you find that she made these notes and mortgage, your next important inquiry will be whether the transaction was one that had relation to her separate property. Well, now, if, as is contended by counsel for the plaintiff, if this was in effect a purchase of property by this good lady, and that was the nature of the transaction, then she could obligate herself to pay for the property which she bought or acquired, and which became by her purchase her separate property.

Looking at the circumstances here in the light of the testimony, it is said by witnesses here--there is evidence tending to show--that there was a good old lady, a Mrs. Mary Miller, the mother of the defendant's husband, the old lady who owned all this property, and she determined at an advanced era in her life to go to Florida, but with a very great propriety on her part, she desired to settle her affairs before she went to Florida; that is, the testimony tends to show that. She didn't want to go away and leave her children to contend over her property, but she wanted to make some arrangement for an equitable division among her children before she left; that was one of the objects which the testimony tends to show she had in view. Then there were some debts which she was anxious to pay. As has been said, she was not bound to pay the debts, but she was an old lady who was so conscientious that she desired to pay these debts; otherwise there might be some legal proceedings which would throw her estate into confusion; and she wanted to settle all those things before she left. I think it was a prudent thing for her to do. But, any way, she made an arrangement which was satisfactory to her creditors and satisfactory to the heirs of the estate. There was no dissatisfaction at that time. What was the arrangement? It was said by some of these witnesses that this personal property was left by her to pay this very

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