The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1888-05-16
Married Women...Pswer to Contract
and Purchase -. Restricted AZ to
Mortgage. -.

Married Women...Pswer to Contract
and Purchase -. Restricted AZ to
Mortgage. !.
The Aultn,an & Taylor Company Us Gt6erte'
al-No 2,20O
In 1884 the defendants, Sarah ]. Gilbert, B. E.
executed a note TO Mrs. Marshall for 81 l,250,
payable In certain instalments. The note was
given on the purchase OF steam engine ana
other machinery. To secure THIS note tne oe,
ferdants Joined in the execution OF mortgage
covering certain tract of land or their IN
ferests therein. The note was assigned 10 the
plaintiff. The first instalment not having
been paid. suit was instituted and Judgmennt p
Gilbert, Jr, and w. b. Mouchet, and foreclosure
ordered as to the two former. No SAFE, now
ever, has been made. The second lnstalment
became due In 1885, which not being ptad, suit
was Instituted dem anding Judgment OF fore
closure as TO the interests OF the other mort
gagors, and Of any balance against Sarah J:
Gilbert. B. E. Gilbert, Jr, B. E. Gilbert, Sr, ana
w. 8. Mouchet.
The defence set up by all of the defendants
was failure of consideration, and IN addition
TO this the defendants, Sarah ]. Gilbert ana
Lucy B. Mouchet, interposed the fact that they
women at she The Master
found among other facts, that there was no
breach Of warranty, that Sarah ]. Gilbert and
Lucy B. Mouchet were married women, ano
J.
machinery and the principal In the note and
mortgage. The Circuit Judge sustained the
Master and adjudged that pla1ntiIs nave
Judgment against Sarah ]: Gilbert, B. E. Gilbert
sum OF 500 with interest and also $50 attor-
neys fee, and further that plaintits nave
Judgment OF foreclosure Of the interest oI tne
B. Mouchet, Jennie L. Gilbert, B. E. Gibertand
Hugh r. Gilbert in the mortgaged premises
described. The married women appealed.
The Supreme Court decides as follows:
AS TO the questions raised, to wit, whether
Mrs Gilbert was the purchaser Of the mach1n-
cry and whether the consideration OF the note
and mortgage had failed, inasmuch as the
Court does not nd an evident nae Mas
ter, concurred in by the Circuit Judge, such
findings must stand as facts In the case.
AS to the question OF the liability Of married
women on mortgage. Mrs; Gioert haying PUT ht
to do by virtue of Section 2,0S7 OF general
Statutes, (see Pelzer, Rodgers Co., vs. Camp.
bell, 15S.. C., $751; the note given by her was
Within the OF her sne
ry with 1t the power TO execute mortgage OF
her separate estate 10 secure the CONTRACT OF
purchase. The power to contract ana pc con-
tracted with as to her separate estate conlerr-
ed BY Section 2,037 OF the General Statutes
does not carry with 1t the power to mortgage
her separate estate to secure q contract OF pnr-
ehars made BY her Of s1 n9
estate The mortgage was executed after the
amendment Of 1852, which repealed the gen.
eral power by restricting said power TO CON
tracts in reference to her separate estate, leaV-
ing the special power of purchase intact.
The mortgage Of Mrs. Gilbert had no re reier, Ino
ence to her Separate estate In the sense OF the
Act. The real contract in the case was the
purchase OF the steam engine and other ma
chinery. not for herself, nor for the use OF her
separate estate, in any way, but for tho use OF
husband, and the mortgage was given to Sc
cure this contract -
Judgment below as to Mrs. Mouchet reVers:
ed, and in so far as it adjudges foreclosure OF
the mortgage against Mrs. Gilbert, also revers-
ed. In other respects affirmed. opinion by
MCGOWAN, "A. j., agrees that this opinion fol-
lowing the recent case Of the Autman q Tay-
lor Company vs. Rus, 8. E. Rep, 402. but ne
still entertains the views then expressed IN
his dissenting opinion.
Filed March q, 1898.
Messrs, Graydon Graydon for appellants.
Messrs. Perrin & Cothran for respondent,