Howard v. Kitchens

• Decision Date: 11 November 1889
• Citation: 10 S.E. 224,31 S.C. 490
• Parties: HOWARD v. KITCHENS.
• Court: South Carolina Supreme Court

10 S.E. 224

31 S.C. 490

HOWARD v. KITCHENS.

Supreme Court of South Carolina

November 11, 1889

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

Action on a note by Robert C. Howard against Nancy Kitchens, a married woman, Judgment for plaintiff, and defendant appeals.

Hemphills & Brice, for appellant.

W. A Sanders, for respondent.

MCIVER J.

This was an action on a note for $150, $35 of which was money loaned by plaintiff to defendant at the time the note was given, and the balance, $115, was for money previously expended by plaintiff for defendant's daughter, at the request of defendant. The real defense was that defendant being a married woman, had no power to make the contract sued upon. It appeared in evidence that defendant was a married woman, and that the husband was and still is living. It seems to me that for so much of the note as represented the borrowed money, $35, the plaintiff was entitled to recover but not for the balance. As I understand it, section 2037 of the General Statutes confers upon a married woman two separate and distinct powers: "(1) To purchase any species of property, which necessarily implies the power to bind herself by contract for the payment of the purchase money. (2) To contract and be contracted with as to her separate property" after such property has been acquired, either by purchase or otherwise. Now, while I cannot accept the view that the borrowing of money by a married woman for her own use may be regarded as a purchase of property, yet I do think it can be regarded a contract "as to her separate property," where the money is borrowed for her own use, and not for another. The act of purchasing is so very different from the act of borrowing that I cannot suppose that when the legislature conferred the power to purchase that they intended to include also the power to borrow, for the rule is that in construing a statute the words must be understood in their usual and ordinary signification, unless there is something requiring a different interpretation; and surely the usual and ordinary signification of the words "purchase" and "borrow" are entirely different, and one is not understood to include the other. But unquestionably money is property, and when a married woman borrows money it at once becomes a part of her property,--her separate estate; for all property owned by a married woman must now be regarded as her separate estate, and her agreement to pay the amount borrowed, according to the terms of the borrowing, may well be regarded as a contract with reference to that property, and therefore such a contract as she is authorized to make, under the second class of powers conferred by section 2037 of the General Statutes.

This case differs from the case of Gwynn v. Gwynn, ante, 221, (decided at the present term of this court,) for there the money borrowed never was received by the married woman, either personally or by her agent, and it therefore never became a part of her property,--her separate estate,--but, on the contrary, it was received and used by her husband, and the contract there could not be regarded as a contract with reference to her separate estate. So, also, in the case of Aultman & Taylor Co. v. Gibert, 28 S.C. 303, 5 S.E. Rep. 806, after it had been found, as matter of fact, both by the referee and circuit judge, that Mrs. Gibert was in fact the purchaser of the property, and the principal on the note given for the purchase money, it was very properly held that, under the first class of powers conferred by section 2037 of the General Statutes, she had the power to execute the note, and was therefore liable; but her power to execute the mortgage in that case was denied, for the very good reason that her power to do so was not necessarily implied in the power to purchase, but must be sought for under the second class of powers conferred by that section,--that is, the power to contract as to her separate estate; and as it appeared in that case that the property purchased was for her husband, and not for herself, and never became her separate property, it was quite clear that the contract evidenced by the mortgage given to secure the payment of the purchase money of property (to use the language of the chief justice in that case) "in no way connected with, or contributing to, said separate estate," could not be regarded as a contract with reference to her separate estate. I do not understand that case to decide, as some seem to suppose, that a married woman, prior to the act of 1887, had no power to execute a mortgage to secure the payment of the purchase money of property purchased by her for her own use, and held as her separate estate. All that is there decided, according to my understanding, is that a married woman had no power to make a mortgage to secure the payment of the purchase money of property bought by her, not for herself, but for her husband; that while she had the power to execute the note for the purchase money of the property so purchased, because that was implied in the unlimited power to purchase, yet she had no power to make the mortgage, because that was not necessarily implied under the power to purchase; and, under the facts of that case, such power could not be derived under the second class of powers conferred by section 2036, as it was not shown to be a contract with reference to her separate estate, in the sense of those terms as interpreted by repeated adjudications of this court.

As to the $115, it seems to me quite clear that the plaintiff cannot recover. So far as that portion of the note was concerned, it was nothing more than an agreement on the part of the wife to pay a debt of her husband. The father, and not the mother, is liable for the necessary expenses of the...