Scottish-am. Mortg. Co v. Deas

• Decision Date: 16 February 1892
• Citation: 14 S.E. 486,35 S.C. 42
• Parties: Scottish-American Mortg. Co., Limited, v. Deas et al.
• Court: South Carolina Supreme Court

14 S.E. 486

35 S.C. 42

Scottish-American Mortg. Co., Limited,

v.Deas et al.

Supreme Court of South Carolina.

Feb. 16, 1892.

Agency — Ratification — Husband and Wife — Liability of Wife for Money Borrowed.

1. Where a husband, who has managed his wife's business since their marriage, signs her name, without her knowledge, to an application to a loan company for a loan, and the wife signs the notes and mortgage given to secure the loan, the wife must be regarded as having ratified the unauthorized signing of the application, and is bound by the statement therein contained.

2. Where such application expressly states that the wife is the borrower, and that part of the money borrowed is to be used to pay off a former mortgage given for supplies to be used on the wife's plantation, which, by the testimony of both husband and wife, is shown to have been managed by the husband, not as his own, but lor the wife, the wife is liable for the money borrowed to pay off such mortgage.

Appeal from common pleas circuit court of Kershaw county; Witherspoon, Judge.

Action by the Scottish-American Mortgage Company, Limited, against Mary R. Deas and others. Judgment for defendants. Plaintiff appeals. Reversed.

W. W. Shannon and Mr. Shand, for appellant.

P. H. Nelson and J. T. Hay, for respondent.

McIver, C. J. The action in this case was for the foreclosure of a mortgage of real estate, given by the defendant Mrs. Mary R. Deas to the plaintiff, to secure the payment of sundry notes executed by her in favor of the plaintiff. This mortgage and these notes, bearing date 15th March, 1884, it is admitted, were executed by Mrs. Deas; but, she being a marriedwoman at the time, the defense is that the contract evidenced by these papers was not such a one as she was capable of making at the time, under the law as it then stood. The contract in question was made to secure the repayment of money borrowed from the plaintiff, and one of the important inquiries in the case is whether this money was borrowed by Mrs. Deas or by her husband. It seems that, under the usage of the plaintiff, this money was loaned upon a written application, a copy of which is set out in the "case, "signed, " Mary R. Deas, " though the testimony shows that she did not, in person, sign her name, but the same was signed by her husband and co-defendant, Allen Deas. But the testimony likewise shows, or at least tends to show, that the signatures of husband and wife resembled each other so much that one not familiar with them might readily take one for the other. This written application, among other items therein stated, gives the name of the borrower as "Mary B. Deas, " and the husband's name as "Allen Deas." It also states that the borrower has certain specified stock on the land, —horses, cows, mules, and hogs; and in response to the inquiry whether the land proposed to be mortgaged to the plaintiff is entirely free from incumbrance the answer is: "No. Small balance on mortgage given to get advances. Will pay same out of portion of funds." And in response to the inquiry whether the land is "leased to any one, or has any person a right of possession thereof, aside from yourself?" the answer is, "No." It is undisputed that the money borrowed from plaintiff, or much the greater part of it, was used to pay a debt secured by a prior mortgage of the same land to H. G. Carrison; the small balance of the amount loaned being appropriated to the payment of insurance, and the expense of negotiating the loan by plaintiff. The mortgage to Carrison was executed on the 1st of February, 1883, by Allen Deas and Mary R. Deas, his wife, and is com bined with a lien on the crops, as well as a mortgage on certain personal property, —horses and mules. This lien and mortgage recite that the party of the first part (Carrison) agrees to advance to the parties of the second part (Allen Deas and Mary R. Deas) money and supplies, to enable them to carry on their agricultural operations. The case was referred to the master simply to take and report the testimony. The only oral testimony taken by the master is that of Allen Deas and his wife. From this testimony there can be no doubt that the land covered by the mortgage sought to be foreclosed was the separate property of Mrs. Deas, and the real question in this case is whether her separate property can be held liable for the payment of the debt secured by the mortgage to the plaintiff.

While there can be no doubt that Mrs. Deas executed the papers evidencing and securing the mortgage debt, yet that alone would not be sufficient to bind her separate estate. The plaintiff must go further, and show that the contract was made with reference to her separate estate. This question of the liability of a married woman upon a contract, after the amendment of 1882, and before the act of 1887 was passed, has been so often before this court, recently, that it cannot be necessary now to go into any discussion of the law upon the subject. It will be sufficient to quote from one of the most recent cases what must now be regarded as the settled law upon the subject. In Saving Inst. v. Luhn, 13 S. E. Rep. 357, also to be reported in 34S. C. —, after citing numerouscases, it is said: "It must be regarded as settled that where a married woman, either directly or through her agent, borrows money from another,...