Wilkins v. Baker

• Decision Date: 28 June 1907
• Citation: 57 S.E. 851,77 S.C. 244
• Parties: WILKINS v. BAKER et al.
• Court: South Carolina Supreme Court

57 S.E. 851

77 S.C. 244

WILKINS v. BAKER et al.

Supreme Court of South Carolina

June 28, 1907

Appeal from Common Pleas Circuit Court of Clarendon County; Hydrick Judge.

Action by E. L. Wilkins against C. B. Baker and M. A. Baker. Decree in favor of defendant M. A. Baker, and plaintiff appeals. Reversed and remanded.

A. Levi and Wilson & Du Rant, for appellant. Woods & O'Bryan, for respondent.

POPE C.J.

On the 23d of January, 1901, C. B. Baker, one of the defendants herein, executed and delivered to E. L. Wilkins, the plaintiff, his bond for the penal sum of $1,260, conditioned to pay the amount of $630 one year after date, with interest at 8 per cent. To secure its payment, Baker executed and delivered to plaintiff a mortgage on a certain tract of land described in the mortgage, and containing 200 acres, more or less. There was a provision in the mortgage that, should the matter be put into the hands of an attorney and foreclosure had, 10 per cent. of the principal and interest should be collected as attorney's fee. The condition of the bond and mortgage having been broken, this action was brought against C. B. Baker and Mary A. Baker, his wife, for foreclosure. Mary A. Baker resisted the action on the ground that the title to the premises was at the time of the mortgage and still is in herself. Plaintiff contended that by releasing her dower and allowing her husband to use the property as his own, she was estopped from setting up title in herself. Mrs. Baker alleges, however, that there was no valid dower release in that she was not privately examined as to her willingness to make the release, and that the notary did not read the mortgage to her at the time she signed it. The matter came on for hearing at the September, 1906, term of court of common pleas for Clarendon county, before his honor, Judge D. F. Hydrick, upon an agreed statement of facts and testimony, and was tried by him without a jury. At the conclusion of the plaintiff's evidence he issued a judgment against C. B. Baker by default for the principal, interest, and 10 per cent. attorney's fee, and dismissed the action as to Mary A. Baker. From this dismissal the plaintiff appeals.

The question raised by the first exception is whether by renunciation of dower a wife is estopped from setting up title to herself in the property. Estoppel rests upon the principle that, where a person by his or her act leads another to change his position, such person is not allowed to assert the existence of a different state of facts, and thus cause loss or injury to the person whom he has caused to act. In applying this principle to the question now under consideration, we are met at once with the inquiry whether it can be held to apply to married women. This, however, does not cause difficulty, for in our state all of the common-law disabilities of married women have been removed, and she is allowed to act and contract with regard to her property and rights the same as if she were unmarried. She, therefore stands upon the same footing as other persons, and her acts must receive the same construction as is given to the acts of others. This being so, does she bar her claim to title in the property by a release of her dower? Legislative acts have created certain formalities which must be observed in order to make the renunciation valid, among other things requiring the wife to be privately questioned and examined as regards the property deeded or mortgaged. The grantee or mortgagee assumes, and...