White v. Goldsberg , 49 S.C. 530 ( 1897 )

The opinion of the Court was delivered by

Mr. Justice Pope.

On the 7th day of August, 1893, Mattie Goldsberg made her promissory note of that date for the sum of $400, due on the 1st day of January, 1894, and payable to one H. F. Lifshiz. , On the same day she executed a deed by way of a mortgage of a tract of land, situate in Barnwell County, in this State, to secure said note. In the former was the recital that “the same (the debt) was for the benefit of her separate estate,” and in the mortgage was the recital, “I hereby declare my intention to bind same (lot of land mortgaged) as my separate estate, being a married woman.” This mortgage was duly recorded in the office of the register of mesne conveyance for Barnwell County. Thereafter, to wit: on the 10th day of August, 1893, the said H. F. Lifshiz indorsed the note payable to the order of J. B. White & Co., of the city of Augusta, in the State of Georgia, and on the same day — 10th of August, 1893 — the said H. S. Lifshiz assigned by his deed therefor the mortgage, and the note and mortgage were placed in the hands of J. B. White & Co. After maturity of the note, the said J. B. White & Co., which firm was really only J. B. White, commenced an action in the name of J. B. White, as plaintiff, against Mattie Goldsberg and H. S. Lifshiz, as defendants, in the Court of Common Pleas for Barnwell County to foreclose .said mortgage, and from the proceeds of sale to pay, first, the costs and disbursements of this action, then to pay the debt and interest of the plaintiff, which debt was only $224.60, and any balance thereafter remaining to be applied in accordance with the rights of and equities existing between the defendants, Mattie Goldsberg and H. S. Lifschiz. The defendant, H. S. Lifshiz, made no answer, but Mrs. Mattie Goldsberg, while admitting that J. B. White & Co. was only J. B. White, that she had made the note as stated in the complaint, and secured its payment by the execution of the mortgage by herself; that she had never paid J. B. White his debt, yet set up the defense that the note she executed to H. S. Bifshiz was for a. debt due by her husband and not for a debt of her own to him, and also that on the 21st day of August, 1893, she had paid to said H. S. Bifshiz the debt of $400, and on that date received from said H. S. Bifshiz a receipt in full of the mortgage and also a satisfaction, under the hand and seal of H. S. Bifshiz, of the mortgage she had executed to him. Testimony was taken by the master for Barnwell County, and upon the pleadings and testimony the cause came on to be heard before his Honor, Judge Benet, at the July, 1896, term of the Court of Common Pleas for Barnwell, S. C., and on the 22d July, 1896, Judge Benet made his decreedn favor of the plaintiff. Thereupon the said Mattie Goldsberg appealed to this Court. Bet the decree and exceptions be included in the report of the case.

We find no difficulty in overruling all these exceptions. In fact, we are entirely satisfied with the decree of the Circuit Judge. When Mrs. Goldsberg made her promissory note and executed her mortgage to secure it, each containing a stipulation that the same was for the benefit of her separate estate, and declaring that it was her intention to-bind her separate estate thereby, she placed it in the power of her codefendant, H. S. Bifshiz, to transfer the same before maturity, so as to estop her from denying the recitals contained in each. And when H. S. Bifshiz transferred the same for value before maturity, without notice, to the plaintiff, J. B. White, he held the same beyond the power of Mrs. Goldsberg and H. S. Bifshiz to mar or destroy them. Our two decisions of Nott v. Thomson, 35 S. C., 461, and Bailey v. Seymour, 42 S. C., 323, are conclusive of this contention.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed, and that the cause be remanded to the Circuit Court to enforce the decree of such Circuit Court.