Dunbar v. Foreman

¶1The opinion of the court was delivered by

¶2The plaintiff, a married woman, the wife of R. J. Dunbar, on November 11, 1887, gave to the defendant, Foreman, a bond for $200, and on the same day executed to him a mortgage of a tract of land belonging to. her, containing 230 acres, to secure the payment of the same. In case of non-payment of the said bond debt, the mortgage contained a provision as follows: “Then, and in such case, it shall and may be lawful for the said Jacob Foreman, &c., and the said Martha B. Dunbar doth hereby empower and authorize the said Jacob Foreman, &c., to grant, bargain, sell, release, and convey the said premises, with the appurtenances, at public auction or vendue; … and on such sale, to make and execute to the purchaser a conveyance in fee of the said premises; and after deducting from the proceeds of said sale the principal *497and interest due on said debt, then to hold the overplus for the said Martha B. Dunbar,” &c. It seems that there was default in the payment of the bond, and the mortgagee, Foreman, by virtue of the aforesaid power of attorney in the mortgage, advertised the mortgaged land for sale on salesday of January, 1891.

¶3Thereupon the plaintiff instituted this proceeding to perpetually enjoin said sale, alleging, among other things, that the said mortgage was given to secure a debt due by her husband to the defendant; that none of the money alleged to have been borrowed from defendant was received by her, or used for her benefit, or the benefit of her separate estate, and that the said bond and mortgage were absolutely void. The defendant answered, denying the allegations against the validity of his mortgage, and by way of affirmative relief, prayed for a regular foreclosure of his mortgage by order of court, and for such other relief as may be deemed proper. It was referred to the master to take the testimony, which was voluminous, and, we regret to be obliged to say, not only conflicting, but in some respects absolutely contradictory. The cause came on to be heard by his honor, Judge Aldrich, who, after a full and careful examination of all the evidence and the law applicable, decreed “that the bond and mortgage executed by the plaintiff to the defendant, and bearing date November 16,1887, be, and the same is hereby, set aside as null and void, and that the same be delivered up to the plaintiff cancelled; that the record of said mortgage be marked cancelled and a reference to this decree noted thereon; and that the injunction granted in this action be made perpetual,” &c.

¶4From this decree (which we hope will appear in the report of the case) the defendant appeals to this court upon the following exceptions: I. That his honor erred in finding that E. J. Dunbar, the husband of the plaintiff, was not her agent in the transactiou in question; that the plaintiff neither in person nor by agent borrowed the money which the mortgage was given to secure; that the mortgage was given to secure a debt due by the husband to the defendant; that none of the money borrowed by said husband was received or used by the plaintiff for the benefit of her separate estate, or with reference thereto; *498that the bond of the plaintiff and her mortgage, purporting to secure the same, was not a contract by her with reference to her separate estate, but was given to secure the debt of her husband to the defendant. Whereas, he should have found that said husband was the agent of the plaintiff in said transaction ; that said debt was the debt of the plaintiff, and for the benefit of her separate estate, and, as such, was binding upon the plaintiff and euforcible against her, &c. II. That his honor erred in holding that the plaintiff was entitled to a perpetual injunction against the defendant, and could enjoiu him from executing the power of sale given by her to the defendant in the power of attorney contained in the mortgage deed, the subject of this action. Whereas, he should have held that the plaintiff, being a married woman, had the right to alienate her property, and having given the defendant the power of attorney to sell the property and apply the proceeds to the debt due the plaintiff (defendant), whether that debt be the debt of her husband or of herself, she could not enjoin the plaintiff (defendant) from executing the power of attorney given, unless fraud was alleged and proved, &c.

¶51 The questions as to the rights of married women, which have arisen out of the Constitution of 1868 and the laws since passed under it, have been so often before this court that we can hardly think it necessary to go into the subject again in this case. We have here but two questions, one of fact and the other of law. The first exception complains of certain findings of fact by the Circuit Judge, who seems to have taken great pains in examining, much in detail, the great mass of testimony. He says: “My.conclusions of fact are: That E. J. Dunbar, the husband of plaintiff, was not her agent; that plaintiff neither in person or by agent borrowed the money, which the mortgage in question was given to secure; that said mortgage was given to secure a debt due by her said husband to the defendant; that none of the money borrowed by the said husband was received or used by plaintiff, nor was it used for the benefit of her separate estate, or with reference thereto; that the bond of plaintiff, and her mortgage purporting to secur.e the payment of the same, was not a contract of hers, with *499reference to her separate estate, but was given to secure a debt of her husband to the defendant.,” &c. We have carefully read and considered the evidence, especially the points as to which error is charged, and we cannot say that the aforesaid findings by the Circuit Judge are without any testimony to support them, or are manifestly against the weight of the evidence. In such case, the rule is well understood, that the findings will not be disturbed, but stand as the established facts. “A married woman has no power to borrow money for the use of her husband; nor to give her note therefor, nor bind her separate estate by a mortgage to secure such note. Therefore, such note and mortgage cannot be enforced against the maker, where the lender knew that the money was to be used in paying a judgment debt of the husband.” Salinas v. Turner, 33 S. C., 232, and cases cited.

¶62 Exception second. It is earnestly contended that even if the Circuit Judge was right in his findings of fact, yet it was error of law to grant a perpetual injunction, for the reason that the mortgage in question, given by a married woman, contains a power of ¡sale, and a power of attorney from the mortgagor to the mortgagee, to sell the property at public sale, pay the debt in question, deed the property to the purchaser, and pay the surplus, if any, to Mrs. Dunbar; that such a power of attorney, even though it be a part of a void security, can be made by a married woman, because of her constitutional right of alienation, and when made it is irrevocable save by her death.

¶7It is undoubtedly true, that under the high authority of the Constitution, Mrs. Dunbar had the right to sell her land, either in person or by an agent appointed for that purpose. She gave Foreman the power, in a certain event, to sell her land for the specific purpose of applying the proceeds of sale to the payment of her bond, secured by the mortgage, in which was also inserted the aforesaid power. Before the power was executed, she exerted whatever right she had to revoke the power, and instituted proceedings to perpetually enjoin its enforcement. Did she have the right to revoke it against the consent of Foreman, the mortgagee and grantee of the power? The general *500rule certainly is, that a principal, who employs an agent, may revoke the appointment at any time. It seems, however, that there are several well recognized exceptions, which are stated in a condensed form in Story’s Agency, section 477, as follows : “A power of attorney or any naked authority is, in general, from the nature of it, revocable at the pleasure of the party who gave it. But where an authority or power is coupled with an interest, or where it is given for a valuable consideration, or where it is a part of a security, then, unless there is an express stipulation that it should be revocable, it is, from its own nature and character, in contemplation of law, irrevocable, whether it is expressed to be so or not.”

¶83 Now the grantor of the power here is not dead, and the question is, whether she had the right to revoke it. As we understand, it is not contended that this mortgage, given with this power of attorney, could be considered as “coupled with an interest,” in the sense of the exception. Nor are we able to see wherein the agency was conferred upon Foreman “for a valuable consideration.” We are, however, inclined to think, if there had been no objection raised to the bond and mortgage, that this case would have fallen under the third class of exceptions, viz: “where it is given as a part of a security,” &c., and giving a vested right would have been “irrevocable.” But we have just held that the bond and mortgage of Mrs. Dunbar, a married woman, to secure a debt of her husband, the payment of which was the very object and purpose of giving the power to sell, was and is absolutely void, just as if they never existed, leaving the said power to sell entirely isolated, and without consideration or purpose. Under this state of facts, we can not suppose that the court would enforce the execution of this unsupported and naked power. When the consideration fails, the agency becomes revocable. Suppose the bond and mortgage had been paid and satisfied, would the court, nevertheless, require the power to be executed and the land sold? ‘ We can not think so. See 1 Am. & Eng. Enc. Law, page 446, and notes. We do not think that the case of Neal v. Bleckley, 36 S. C., 468, cited for the defendant, is analogous to this. In that ease the married woman owed a part of the *501money secured by the mortgage of both herself and husband, which mortgage contained a power of sale from her, and she permitted the sale of the lands. We agree with the Circuit Judge, that the power of sale for the specific purpose of paying a debt which was void, fell with the bond and mortgage.

¶9The judgment of this court is, that the judgment of the Circuit Court be affirmed.