Holland v. Jones Et Ux

Decision Date10 February 1897
Citation26 S.E. 606,48 S.C. 267
PartiesHOLLAND et al. v. JONES et ux.
CourtSouth Carolina Supreme Court

Estoppel—By Deed—By Conduct.

1. A husband giving a mortgage on his wife's lands, and describing them as his own therein, is estopped to deny ownership.

2. Where a wife, knowing that a mortgage given by her husband was on lands owned by her, signs and acknowledges the deed, she is estopped to deny the ownership of her husband.

Appeal from common pleas circuit court of Laurens county; Townsend, Judge.

Action by Holland & Fowler against R. B. Jones and Emma Jones. Judgment for plaintiffs, and defendants appeal. Affirmed.

The following is the decree of the circuit court:

"This case was heard by me upon the pleadings and testimony taken by a special referee. On the 31st day of January, 1891, the defendant R. B. Jones executed to the plaintiffs his promissory note for the sum of two hundred and seventy-six and 50/100 dollars, payable November 1st after date, with interest at eight per cent. per annum from date. In order to secure the payment of said note, the said defendant, on the same day, made, executed, and delivered to the plaintiffs a mortgage on a certain tract of land, which is described in the complaint. The defendant Emma Jones, the wife of R. B. Jones, on the same day renounced her dower In the said tract of land on the mortgage. The consideration of the note was two mules sold by the plaintiff to R. B. Jones, or, rather, the difference between mules traded by Jones to plain-tiff. This action Is brought by the plaintiffs against the defendants to foreclose said mortgage, Emma Jones being made a party because she claims some interest in the mortgaged premises adverse to the plaintiffs' lien. Both of the defendants answer the complaint, claiming that the title to the mortgaged premises is in the defendant Emma Jones, and that such was the case at the time of the execution of the mortgage, and that plaintiffs have no right to foreclose. The answer of the defendant R. B. Jones, in addition to the above defense, sets up a failure of consideration growing out of the unsoundness of one of the mules purchased.

"I cannot sustain any of the defenses. It appears that credit was extended to Jones upon representations made by him that he was the owner of the land; that the defendant Emma Jones was present when the note and mortgage were executed; that the papers were read over in her hearing, and she made no objection. It further appears from the facts, and I so find, that, after the papers were read over and executed by her husband, she renounced her dower on the mortgage, thus declaring and representing to the plaintiffs that the title to the land was in R. B. Jones. I hold that her conduct makes out a case of estoppel, and that, after having misled the plaintiffs, she cannot now set up title in herself, and deprive the plaintiffs of their security. The plaintiffs did not know that she had title to the land, and they had a right to rely upon her conduct and representations, as well as those of her husband. The defendants also claim that the note and mortgage were only to be given for two hundred and fifty dollars, instead of two hundred and seventy-six and 50/100 dollars. I cannot sustain this view of it The papers were read over to them, and they made no objection, and they cannot now question them. I also hold that, under the contract, the note was given for the amount agreed on by all the parties. I may also add that there is no legal proof of title in the defendant Emma Jones. I also hold that there has been no failure of consideration, and if there had been the testimony discloses the fact that the plaintiffs agreed with the defendant R. B. Jones to knock off ten dollars for the 'colicy' mule, and fifteen dollars more in case the defendant paid balance due by a certain time, which was not done. I therefore conclude that plaintiffs are entitled to the relief which they seek, and it is ordered, adjudged, and decreed that there is now due on the mortgage debt by the defendant R. B. Jones, after allowing all proper credits, including the ten dollars above referred to, one hundred and sixty-eight and 22/100 dollars, for which amount it is ordered that plaintiffs have judgment against R. B. Jones. It is further ordered, adjudged, and decreed that the tract of land described in the complaint be sold by John H. Wharton, Esq., the clerk of this court at public outcry, to the highest bidder, at Laurens C. H., S. C, on salesday in November next, or some convenient salesday thereafter, after giving twenty-one days' notice thereof in one of the newspapers published in Laurens county, on the following terms, to wit: For one-half cash, and the balance on a credit of twelve months, with leave to the purchaser to pay his entire bid in cash, the credit portion to...

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11 cases
  • Clements v. Doak
    • United States
    • Nebraska Supreme Court
    • July 25, 1941
    ...name of her husband is estopped to claim that her husband is not the owner. 4 Tiffany, Real Property, 3d Ed., sec. 1235; Holland v. Jones, 48 S.C. 267, 26 S.E. 606;Duckwell v. Kisner, 136 Ind. 99, 35 N.E. 697;Pierce v. Hower, 142 Ind. 626, 42 N.E. 223;Neslor v. Grove, 90 N.J.Eq. 554, 107 A.......
  • Clements v. Doak
    • United States
    • Nebraska Supreme Court
    • July 25, 1941
    ... ... that her husband is not the owner. 4 Tiffany, Real Property ... (3d ed.) sec. 1235; Holland v. Jones, 48 S.C. 267, ... 26 S.E. 606; Duckwall v. Kisner, 136 Ind. 99, 35 ... N.E. 697; Pierce v. Hower, 142 Ind. 626, 42 N.E ... 223; Neslor ... ...
  • Chambers v. Bookman
    • United States
    • South Carolina Supreme Court
    • July 15, 1903
  • Duffer v. Brunson
    • United States
    • North Carolina Supreme Court
    • December 19, 1924
  • Request a trial to view additional results

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