American &c. Co. v. Felder

The opinion of the court was delivered by Mr. Justice Gary. The facts connected with this case are fully stated in the decree of his honor, Judge Witherspoon, which, together with appellant’s exceptions, will be incorporated in the report of the case. The exceptions raise practically but three questions: I. Was Col. Aldrich the agent of the mortgagee, so as to charge the mortgagee with notice given to Col. Aldrich? II. Did Col. Aldrich have notice that the money1 borrowed was not for the use of the mortgagor, a married woman? III. Was the mortgage executed and delivered by Mrs. Bessie C. Felder null and void? 1 It appears, from the testimony of Col. Aldrich, that he was the plaintiff’s local attorney for Barnwell County, whose duty it was to prepare abstracts of title and superintend the execution of all papers relating to loans by the plaintiff in that county. Any facts which came to his know [483] ledge while acting as such attorney, and which showed that a mortgage by the defendant, Mrs. Bessie O. Felder, would be null and void, would be notice to the mortgagee. It was the duty of Col. Aldrich, as local attorney, to pass upon the validity of th.e security, and it is manifest that information received by him showing that the mortgage would be invalid, would be within the scope of such agency, and, therefore, binding upon his principal. Salinas v. Turner, 33 S. C., 231; Bates v. American Company, 37 Id., 88. The first of the foregoing questions is, therefore, answered in the affirmative. 2 We proceed next to a consideration of the .second question. The Circuit Judge decided that Col. Aldrich had such notice, and under the well settled rule of this court, this finding is binding on us, unless it is unsupported by testimony or clearly against the weight of the evidence. Our duty in this respect is more restricted than that of the Circuit Judge, who is not bound in arriving at his conclusion to conform to such rule. In this case we feel bound to adopt the finding of the Circuit Judge on this question of fact, without any intimation as to what might have been our conclusion if it had been presented to us as an original question. .This second question must also be answered in. the affirmative. 3 We will now proceed to consider the third question. It must be remembered that the money did not go into the hands of Mrs. Bessie C. Felder, and that her endorsement of the check was for the-purpose of enabling her husband to get the money as originally contemplated for his own use. N. F. Felder testifies that when the money was sent in a check to Bamberg to close up the loan, the check was delivered to him. In the case of Sailnas v. Turner, supra, the court says: “Now, it has been held by this court, in several cases recently decided, that while a married woman may borrow money for her own use,.&c., and secure the same by a valid mortgage, yet that she cannot do this for the benefit of her husband, provided the lender has knowledge of such intended use. This has been so recently and so plainly decided, that we do not deem it necessary here to examine into the reason and foundation .of this proposition. We think it sufficient simply to refer [484] to the cases: Tribble v. Poore, 30 S. C., 97; Gwynn v. Gwynn, 31 Id., 482; Greig & Matthews v. Smith, 29 Id., 429; and Goodgion v. Vaughn, Ibid., 499. If these cases have not established this proposition beyond controversy or doubt, we do not know how a legal proposition could be established — certainly not by the decisions of a court of last resort.” The case of Pelzer v. Durham, 37 S. C., 355, decides that when the money is borrowed for the use of the husband, and this fact is known to the mortgagee, the mortgage is null and void, even when the money is placed to the wife’s credit on the mortgagee’s books, and drawn out on her drafts mostly in favor of the husband, and none of it used by the wife. The many cases on this subject can be harmonized by bearing in mind the distinction in the cases where the money is actually borrowed by the wife, although the mortgagee may have knowledge that the wife intends to dispose of it in such a manner as will be of no benefit to her separate estate, and the cases where-the mortgagee knows that the money is not to go into the possession of the wife and become part of her separate estate. The third question must be answered in the affirmative. It is the judgment-of this court, that the judgment of the Circuit Court be affirmed.