Greig v. Smith

• Decision Date: 12 October 1888
• Citation: 7 S.E. 610,29 S.C. 426
• Parties: GREIG et al. v. SMITH.
• Court: South Carolina Supreme Court

7 S.E. 610

29 S.C. 426

GREIG et al. v. SMITH.

Supreme Court of South Carolina

October 12, 1888

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

Suit by Greig & Matthews against S. V. Smith to foreclose a mortgage. Judgment for plaintiffs, and defendant appeals. The objection raised by the third exception was that the trial court held that certain credits or payments made by W. G. Smith, agent of defendant, without any instructions as to their application, were properly applied by plaintiffs to a debt due them from said Smith, and not to the discharge of the mortgage in suit.

Featherston & Son, for appellant.

Calhoun & Mabry, for respondents.

McGOWAN J.

This was an action to foreclose a mortgage. It seems that the defendant, Savannah M. Smith, is a married woman, the wife of W. G. Smith; and, being desirous of raising $1,000, she executed a bond and mortgage of a house and lot, her separate property, to the plaintiffs. The money was to be advanced to her as she might need it. The issues of law and fact were referred to the master, W. W. Humphreys, Esq., who, among other things, found the following facts: "That on February 18, 1885, Savannah M. Smith executed her bond to the plaintiff in the sum of one thousand dollars, to be paid on or before November 15, 1885, with interest from the date thereof; and that in said bond she expressly authorized and empowered W. G. Smith [her husband] to use the said advances in his name and business as the true and lawful attorney of the said Savannah M. Smith. That at the same time the said Savannah M. Smith, to secure the payment of said bond executed her mortgage, covering the premises described in the complaint, to-wit, house and lot in 'Honea Path,' which was her separate estate; and therein is recited 'This mortgage is given for the purpose of securing advances to me through my husband, W. G. Smith, and in his own name.' That from February 18 to July 15, 1885, plaintiff did advance and pay to W. G. Smith, as agent or attorney for his wife, Savannah M. Smith, the sum of $1,037.49, including an item of interest of $36.37. The moneys so advanced, as shown by the evidence, were applied by W. G. Smith to the payment of his own indebtedness," etc. It seems that W. G. Smith arranged with the plaintiff that he would ship them, towards payment of the advances, 100 bales of cotton, and, "in case he failed to ship that amount, to pay a commission of $1.25 for every bale so short, which amount the plaintiffs were authorized to charge against him; that only 31 bales were shipped, and the proceeds of the sale properly credited; but that the commissions of $1.25 per bale on the shortage of 69 bales, amounting to $86.25, were added to the 'advances,'--making the debt of the defendant, Savannah M. Smith, amount, at the time of the report, to $925.98." The master reports "that Greig & Mathews have charged in their account $86.25 commissions or shortage on failure to ship sixty-nine bales of cotton, and interest on all together, $84.46, and their account shows a balance due thereon of $925.98." Upon this state of facts the master reported that at that date, February 11, 1887, the debt of the defendant, including $86.25 commissions or liquidated damages charged for shortage in shipping cotton, was $925.98; and that, to enforce the payment of this sum and interest, the plaintiffs were entitled to foreclose their mortgage on the house and lot of the defendant, Savannah M. Smith. The defendant excepted to this report, and, the cause coming on to be heard by Judge FRASER, he concurred with the master in both his conclusions of law and fact, and confirmed the same. From this decree the defendant appeals to this court upon the following exceptions: "(1) Because his honor erred in sustaining the master's report as to his findings and conclusions of law. (2) Because he erred as a matter of law in holding that defendant was liable on said note and mortgage. (3) Because he erred in holding that the credits or payments made by W. G. Smith, agent, did not operate as a legal satisfaction of the bond and mortgage. (4) Because his honor erred as a matter of law in finding that the $86.25, commissions on shortage on shipment of 69 bales of cotton, was an advancement to, and embraced in, the contract of defendant, and in making her liable therefor."

The papers show, the proof confirms, and the master and judge found, that not only the contract, but the bond and mortgage also, were made and executed by the defendant, Savannah M. Smith, for and on behalf of herself alone; and that her husband, W. G. Smith, had no connection whatever with the transaction, except as "her true and lawful attorney." Under these circumstances, there can be no doubt that the defendant, Savannah M. Smith, although a married woman, had the same power to contract with reference to her separate estate "as if she were unmarried." See the recent cases of Fant v. Brown, 6 S.E. Rep. 937, and Booker v. Wingo, ante, 49.

The third exception complains that the credits or payments made by the husband, W. G. Smith, were not allowed to operate as a legal satisfaction of the bond and mortgage. There being no special instructions on the subject, the plaintiffs had the right to apply these credits so as "to leave the balance at the foot of the account, to constitute the mortgage debt." Williams v. Vance, 9 S.C. 349, and the authorities there cited.

The fourth...