Singleton v. Singleton

• Citation: 60 S.C. 216,38 S.E. 462
• Parties: SINGLETON et al. v. SINGLETON.
• Decision Date: 08 April 1901
• Court: South Carolina Supreme Court

38 S.E. 462
60 S.C. 216

SINGLETON et al.
v.
SINGLETON.

Supreme Court of South Carolina.

April 8, 1901.

MORTGAGES — WIFE'S SEPARATE ESTATE — EVIDENCE—COUNTY—DEEDS — WARRANTY — EXTENT OF WARRANTY—FRAUD—EQUITY.

1. Evidence that, a few days after the execution of a mortgage by a married woman engaged in business, she paid cash for goods, and there was no evidence that she had any means when she executed the mortgage, the evidence was sufficient to show that the mortgage was valid, in that the money was borrowed for her separate estate.

2. Where those owning two-thirds of a tract of mortgaged-land gave warranty deeds of their interests to the owner of the other third, in consideration of his giving a deed of the whole to them, to be operative on his death, the warranty in the deed of the latter covered only his third.

3. Where a wife owned a mortgage on the land of her husband, and he fraudulently stated to his vendee that there were no incumbrances, and there was no evidence of any misrepresentations by her, and it was not shown that she

[38 S.E. 463]

was present when his representations were made, and the only act shown on her part was her renunciation of her dower, a contention that there should have been a finding of actual fraud on the part of the wife was without merit,

4. A husband used part of a sum of money raised by his wife on a mortgage of her land, and after her death, leaving surviving himself and two children, in all of whom the land vested in equal shares, he took np the mortgage, which he thereafter assigned. Held that, on foreclosure against the children by the assignee, there should be deducted from the amount of the mortgage the sum used by the husband, with interest.

5. Where the owner of a one-third interest in land takes up an incumbrance on the same, the incumbrance is destroyed as to his third, there being a merger.

6. There being no statute requiring the assignment of a mortgage to be recorded, failure to record such assignment has no effect upon the rights of the assignee.

7. Where a wife died leaving surviving a husband and two children, in whom her estate, real and personal, vested in equal shares, and the real estate was incumbered by a mortgage, which the husband thereafter took up and assigned, in foreclosure against the children by the assignee, it appearing that the husband had taken more than his one-third of the personalty of the wife, the amount of such excess should be deducted from the amount for which the assignee is entitled to foreclose.

Appeal from common pleas circuit court of Kershaw county; J. C. Klugh, Judge.

Suit by Howard C. Singleton and another against Esther Singleton, individually and as administratrix of the estate of Robert Singleton, deceased, to set aside a mortgage. From a decree in favor of plaintiffs, defendant appeals. Reversed.

The following is the report of the master: "This is a suit brought by the plaintiffs, H. C. Singleton and J. A. Singleton, to have a mortgage, which is a cloud upon the title to a certain piece of real estate owned by them, declared null and void, and canceled; the defendant asking that said mortgage be foreclosed. One A. E. Singleton, the mother of the plaintiffs, was at the time of her death, on June 8, 1893, the owner in fee simple of the real estate in question, a lot and storehouse in Camden, S. C. Said A. E. Singleton died intestate, leaving surviving her, as her heirs at law and distributees, her husband, Robert Singleton, and her two sons, H. C. Singleton and J. A. Singleton, the plaintiffs herein. On September 1, 1891, said A. E. Singleton executed and delivered to one Woodward Holland her bond in the penal sum of $1,010, conditioned for the payment of the sum of $805, due and payable as follows: $420 September 1, 1892, with interest after maturity at the rate of 8 per cent, per annum, and $385, with interest at the same rate, on September 1, 1893, —and, in order to secure the payment of said bond, executed a mortgage to said W. Holland on the real estate in question. On October 21, 1893, said mortgage was assigned by said W. Holland to R. Singleton upon the payment by said R. Singleton of $843.20; and on December 15, 1893, R. Singleton assigned said mortgage to said Esther Singleton, his second wife, the defendant herein. No consideration passed for said assignment, it being a deed of gift.

"It appears that, after the second marriage of R. Singleton, he and his sons, the plaintiffs, became involved in a disagreeable dispute over the settlement of the estate of A. E. Singleton, deceased, of which dispute Esther Singleton was cognizant. R. Singleton and his sons finally settled their difference by the said R. Singleton making to H. C. and J. A. Singleton a deed of his interest in said real estate to take effect upon his death; plaintiffs, in consideration of same, making a deed to him for his life of their two-thirds interest in said real estate, said deeds bearing date January 5, 1894. The deed of R. Singleton to plaintiffs contained the usual general warranty clause, and Esther Singleton renounced her dower to same. It is an undisputed fact from the evidence that at the time of the execution of said deeds the plaintiffs did not know of the assignment of bond and mortgage to Esther Singleton; and in fact the testimony is that, before H. C. Singleton signed deed, R. Singleton was asked if the W. Holland mortgage was paid, and R. Singleton replied that it was paid. There is no testimony as to whether or not R. Singleton was asked about assignment of mortgage to him by W. Holland. The mortgage was duly recorded on September 5, 1891, but the two assignments were not recorded until May 30, 1898, after the commencement of this action. There does not appear, however, to have been any secrecy about the assignment of mortgage by Holland to R. Singleton. The witness E. C. Zemp, cashier of the Farmers' & Merchants' Bank, testified that R. Singleton spoke to him about assignment the day before said assignment was executed, and the money was paid to Holland by a check on bank. Both W. Holland and R. Singleton died before the commencement of this suit.

"The plaintiffs contend that this mortgage is null and void, and should be canceled for various reasons. The plaintiffs first attack the mortgage under the married woman's law. They claim that said mortgage was given to secure a loan made for the purpose of obtaining money to pay the debts of R. Singleton. There is no question as to the fact that when A. E. Singleton executed bond and mortgage she was married to R. Singleton. Although this mortgage was executed in 1891, it cannot be considered under the act of 1887, as the mortgage did not declare that it was the intention of mortgagor to bind her separate estate, and therefore this mortgage will have to be considered under the act of 1882. This case is peculiar, In that the mortgagor, A. E. Singleton, her husband, R. Singleton, and the mortgagee, W. Holland, the parties to the transaction, are all dead, and therefore It is impossible

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to get direct testimony on the material questions in issue.

"The mortgagor not having declared her intention of binding her separate estate, and the burden of her proof being in the first instance upon the holder of the mortgage to show that the money was borrowed from Holland by A. E. Singleton, or through her husband as her agent, and the defendant having failed to make such proof, the mere fact of mortgagor having executed mortgage, and the loan having been made, will not of itself be sufficient to make said money a part of the separate estate of A. E. Singleton, and the claim for same enforced against her, regardless of the disposition of the money, and this case is for that reason to be distinguished from the case of Institution v. Uuhn, 34 S. C. 175, 13 S. E. 357, and the case of Mortgage Co. v. Deas, 35 S. C. 43, 14 S. E. 486. We therefore have to fall back upon the doctrine laid down in Habe-nicht v. Rawls, 24 S. C. 461, and reaffirmed in numerous other cases not necessary to be reviewed here, that it is not so much the intention of the married woman to bind her separate estate as it is her power to do so, — whether or not the contract was for the benefit of her separate estate; if not, It could not be binding upon her separate estate. It has been decided in the case of Pelzer v. Durham, 37 S. C. 354, 16 S. E. 46, that the party seeking to recover upon a married woman's contract must show by evidence, direct or circumstantial, that the contract was made with reference to her separate estate. Now, has the defendant shown that the bond and mortgage executed by A. E. Singleton to Holland was for the benefit of her separate estate? It has not been clearly so shown by direct evidence, but, as direct evidence is impossible in this case, circumstantial evidence has to be relied on. The evidence shows that the mortgage was executed September 1, 1891; that prior to that time R. Singleton had been conducting a bakery and grocery business in Camden in the store on the mortgaged premises; that on October 23, 1891, A. E. Singleton started business with George W. Steffens' Sons, of Charleston, and continued to do business with them until March 1, 1894; that on September 25, 1891, John C. Weiters, of Charleston, a wholesale grocer, sold A. E. Singleton a bill of goods amounting to $308.29, of which $275 was paid on the same day and the balance still remains unpaid. The testimony of the cashier of the Bank of Camden, and the books of the bank, show that in the fall and winter of 1891 and the winter and spring of 1892 numerous collections came to the bank from business houses against A. E. Singleton. The city recorder and the county auditor testify as to the tax returns of the Singletons, which shows that all property, real and personal, including merchandise, was returned in the...