found as matter of fact "that the defendant | estate for herself in the $500, and that she intended, when the loan was made, to create thereby became liable and legally bound for a debt against herself. The money was the note and mortgage sued on. (2) In counted and placed in her hands by the sustaining the error of the referee that the agent of the plaintiff. She created an es- $500 note given to the defendant by her hustate for herself in the $500, over which she band, was for the money which she had had absolute control. Immediately after borrowed from plaintiff, and not for the the money was paid to the defendant, she rent and patch-cotton' money due the deturned it over to her husband, who took fendant by her husband," etc. "(3) In susit, and handed her $50 of the same. On taining the error of the referee that the note February 25, 1885, five days after plain- and mortgage held by the defendant on tiff's note and mortgage were made, the de- her husband is a separate estate, which was fendant took a note from her husband for created by the loan of plaintiff to her, and the sum of $500, and there was an energetic that therefore she is legally bound to plaineffort on the part of the defendant to show tiff. (4) In confirming as a fact the conjectthat this note was given to her for the rent ure of the referee that defendant had used $50 of her place and for proceeds of her 'patch of the money borrowed from the plaintiff. cotton.' It is strange that she happened (5) In overruling the referee, and holding to make a general settlement with her hus- that defendant derived benefit from the band for 'rent and patch cotton,' just at money loaned. (6) In holding that J. J. this time when this money had been bor- Lipscomb was the general agent of the derowed, and at no other time. It is very fendant, and as such had charge of her strange, too, that the rent and patch cot- lands, and that in the transaction with ton happened to amount to exactly $500. Mrs. Law he was throughout the agent of But still more strange is the fact that the defendant. His acts were her acts, and his defendant, more than two years after this, representations were hers," etc. "(7) In sustook a mortgage from her husband to se- taining the error of the referee that the note cure this note for rent and patch cotton, given by the defendant to the plaintiff was and did not secure all the rent due her at a contract made by the defendant as to her that time. No rent has ever been paid to separate estate, and that she and her esher up to this time by her husband,” etc. tate are bound by it. (8) In holding that "This theory is utterly unreasonable, and there was anything due by defendant to fails to satisfy me that there is any truth in plaintiff, and in decreeing that plaintiff is it. I find that this $500 note was given to entitled to judgment of foreclosure, and in defendant by her husband for the money rendering such judgment. (9) In not holdborrowed from her, which she had bor- ing that defendant was without power to rowed from plaintiff. The $50 given by the execute the note and mortgage herein sued husband of defendant to her possibly rep-on, she being a married woman, and they resents one year's interest in advance, at 10 not being given for the benefit of her sepaper cent. The note and mortgage held by rate estate. (10) In not dismissing the comdefendant on her husband are therefore an-plaint, with costs," etc. other separate estate, which she has been The referee found as matter of fact "that able to create in her own name by reason the notes and mortgage given by the deof the loan, which she secured at the hands fendant to the plaintiff were a contract of the plaintiff," etc. "I find as conclusions made by the defendant as to her separate of fact: (1) That the note given by defendant property." In this finding the circuit judge to the plaintiff was a contract made by the concurred, adding that in the transactions defendant as to her separate property; (2) with Mrs. Law, J. J. Lipscomb was that the amount due by the defendant to throughout the agent of the defendant, and the plaintiff is the sum of $501.50, with in- his acts were her acts, and his representaterest at 10 per cent. per annum," etc. "And tions were her's, also. In such case the rule I find as conclusion of law that the plain- of this court is well known. We have read tiff is entitled to the foreclosure of her mort- the testimony carefully, and we do not think gage, the sale of the premises, and to have that the finding was against the weight of the proceeds of such sale applied to the pay- the evidence. On the contrary, it seems to ment of her debt," etc. Upon exceptions to us that all the circumstances of the case, this report the cause came on for trial by notwithstanding the positive testimony of Judge HUDSON, who, after full argument, the defendant and her husband, are in endecreed as follows: "The referee's report tire accord with the finding. The defendis hereby confirmed in its findings both of ant, in person and on the faith of her proplaw and of fact, and made the judgment of erty, secured the loan. She executed the this court, except in so far as the same may note and mortgage herself, and the money be altered by this decree. I further hold was placed in her hands, and she then turned that J. J. Lipscomb was the general agent it over to her husband, who, as stated by of the defendant, and as such had charge of herself, was her agent. Besides, she enher lands. In the transaction with Mrs. deavored to secure the repayment of the $500 Law, J. J. Lipscomb was throughout the to her by taking a mortgage from her husagent of the defendant, and his acts were band of a tract of land which belonged to her acts, and his representations were hers, him. This fact being thus considered as esalso, at least so far as the plaintiff is con- tablished under the well-known rule of this cerned. Mrs. Lipscomb derived benefit from court, we do not think it necessary to folthe money loaned, and she is bound, as well low the learned argument of the appellant's as her separate estate, by her contract," attorney into the general subject of the etc. From this decree the defendant ap-rights and powers of married women so repeals to this court, upon the "following cently considered by this court. The words grounds:" "(1) In sustaining the error of of the statute (sections 2036, 2037, Gen. St.) the referee that the defendant created an are as follows: "A married woman shall * * * * * MCIVER, J. I concur for the reasons stated in my opinion in the case of Howard v. Kitchens, ante, 224, herewith filed. SCHMIDT V. DEAN. (Supreme Court of South Carolina. Nov. 11, 1889.) CONTRACTS OF MARRIED WOMEN-LOANS. A married woman is liable for money borrowed by her under the representation that it was for herself, where the lenders knew nothing to the contrary. Following Howard v. Kitchens, ante, 224. SIMPSON, C. J., dissenting. Appeal from common pleas circuit court of Spartanburg county; HUDSON, Judge. Action by L. Schmidt against M. C. Dean, a married woman, on two notes and mortgages executed by her to plaintiff. Judgment for plaintiff, and defendant appeals. Stanyarne Wilson, for appellant. Thomson, Nicholls & Moore, for respondent. MCIVER, J. Under the well-settled rule, I think we are bound to accept the facts as found by the concurring judgment of the referee and circuit judge. According to those findings, the defendant borrowed the money in question under the representation that it was for herself, and the lenders knew nothing to the contrary. Upon this state of facts, it seems to me that there was no error in holding the defendant liable. In the case of Howard v. Kitchens, ante, 224, (decided at the present term,) I have undertaken to state the reasons why I think a married woman should be liable for money bor have power to bequeath, devise, or convey | law in such cases as held by the majority of her separate property in the same manner this court. and to the same extent as if she were unmarried, and shall have the right to purchase any species of property in her own name, and to take proper legal conveyances therefor, and to contract and be contracted with as to her separate estate, in the same manner as if she were unmarried," etc. As I understand it, our decisions hold that while a mortgage is not an 66 alienation" in the sense of the constitution, so as to enable a married woman thereby (mortgage) to secure the debt of another, yet there is nothing in the nature of a mortgage which excludes it from the category of those contracts that a married woman may make in reference to her separate estate. To that extent her power is as ample as if she were unmarried. The question is not whether the mortgage of the defendant was an "alienation" under the general power given by the constitution, but whether it was an exercise of the power given by the act "to contract as to her separate estate." As it was clearly expressed by Mr. Justice McIVER in Greig v. Smith, 29 S. C. 426, 7 S. E. Rep. 610, (April term, 1888:) "While it has been fully and finally settled that, since the act of 1882, a married woman has no power to bind either herself or her separate property in any form, for the payment of the debts of another, yet it is equally well settled that she has full power to make any contract with reference to her separate estate, and may, by mortgage or otherwise, subject such estate to liability for the performance of such contract," etc. In Greig v. Smith, 29 S. C. 426, 7 S. E. Rep. 610, (April term, 1888,) it was held that the note and mort-rowed by her for her own use, and not for gage of a married woman, given for money borrowed, and turned over to her husband, as 'her true and lawful attorney," was valid and binding, and was enforced against her separate estate. It was said in the case that "surely the faithlessness of her agent, in misapplying the money advanced, cannot affect the rights of the person advancing the money without it is shown that he participated in such misapplication." In Fant v. Brown, 29 S. C. 598, 6 S. E. Rep. 937, (April term, 1888,) this court held that the note and mortgage of a married woman, given to secure the purchase money of two mules bought by her, were legal, and as such were enforced against her separate estate. In Dial v. Agnew, 28 S. C. 454, 6 S. E. Rep. 295, (November term, 1887,) this court held that the note and mortgage of a married woman, given to secure the purchase money of an engine bought by her, were legal and binding, the court holding that it was not error in the circuit judge to charge that "as to her separate property a married woman has all the rights to contract that a grown-up man of twenty-one years of age would have," etc. The judgment of this court is that the judgment of the circuit court be affirmed. 66 SIMPSON, C. J. Under the authority of the recent cases of Schmidt v. Dean, post, and Howard v. Kitchens, ante, 224, in both of which I dissented, I am constrained to concur in the opinion now presenting the the use of her husband or any other person, even where such money has not been borrowed for the purpose of improving, or otherwise contributing to the use, of the separate estate previously owned by her, and it is not necessary to repeat them here; and as Mr. Justice MCGOWAN concurs in this conclusion for the reasons stated in his separate opinion, herewith filed, it is the judg ment of this court that the judgment of the circuit court be affirmed. full MCGOWAN, J., (concurring.) The referee found, and the circuit judge concurred in the finding, that the defendant, by taking the notes and mortgages of Hill & Dean for the money which she borrowed on the securities sued on, "created for herself a new estate." I do not think that finding was against the weight of the evidence. This being the case, it seems to me that the question involved has been recently decided. This court has held that "since the act of 1882 a married woman has * * power to make any contract with reference to her separate estate, and may, by mortgage or otherwise, subject such estate to liability for the performance of such contracts." Greig v. Smith, 29 S. C. 434, 7 S. E. Rep. 610. "As to her separate property, she has all the rights to contract that a grown man of twenty-one years would have." Dial v. Agnew, 28 S. Č. 460, 6 S. E. Rep. 295. See Fant v. Brown, 29 S. C. 598, 6 S. E. Rep. 937; and also Howard v.Kitchens, ante, 224, and Law v. Lipscomb, ante, 226, (decided at the present term of the court.)|that case Mrs. Gibert, a married woman, The difference between this case and that of purchased a steam-engine and other maAultman & Taylor Co. v. Gibert, 28 S. C. 305, chinery, for which she gave her note, secured 5 S. E. Rep. 806, is obvious. In that case by a mortgage. This court, recognizing it was in proof that Mrs. Gibert purchased her power, under the act of 1870, to pur"the_machinery" for her husband, and it chase the property, denied power in her to was held that "a married woman's sepa-mortgage her separate estate to secure the rate estate is not bound by a mortgage purchase money thereof. This was done executed by her in 1884 to secure the note after full and deliberate consideration, and of another person," while it is in proof the conclusion of the court was based uphere that Mrs. Dean borrowed the money on the ground that, it not appearing that for herself, and now holds securities for it the purchase of the machinery had any conin her own name. That made it a contract nection with her separate estate, her mortin reference to her separate estate. Doubt-gage given to secure the purchase money less it is true that the court does not sit for thereof could not be held legal, under the the purpose of enforcing mere moral obli- act which authorized a married woman to gations; but still, in dealing with contracts contract, and be contracted with, as to her upon the faith of which parties have parted separate property, the said mortgage havwith their money, it would seem that some ing no reference to said separate estate in consideration is due to truth and fair deal- the sense of the act, as construed in former ing. While the court cannot undertake to decisions. Now, in the case below, the enforce mere moral obligations, it cannot notes which the mortgages in question were be otherwise than satisfied when the proper executed to secure were given not for the conclusions of law are found to correspond purchase of property, as in Aultman & Taywith what seems to be the justice of the lor Co. v. Gibert, supra, but for borrowed money; and admitting, for the present, that defendant had the power to borrow money, and to give note for its payment, where is the difference between that case and the case of Aultman & Taylor Co. v. Gibert, in so far as the mortgages are concerned, and the power of the married woman to execute said mortgage, there being no evidence that said borrowed money was intended for the use of, or had reference to, her separate estate? As we have said, the question was fully considered and elaborately discussed in the Aultman & Taylor Co. Case, supra, and it is useless to go through the discussion again. We think the judgment below, in so far as the mortgages were involved, was in direct conflict with the conclusion of that case, and it must be overruled. case. SIMPSON, C. J., (dissenting.) The defendant, appellant, a married woman,borrowed money from the respondent on two separate occasions, for which she gave her notes, -the first signed by herself, Joseph Hill, and James L. Dean, her husband; the second by herself; the interest on the first to be paid annually, and, in case of suit, all costs, including 10 per cent. attorney's fees; interest on the second, at 10 per cent., from maturity until paid. She gave a mortgage on certain real estate to secure these notes. The action below was resisted on the ground that defendant was a married woman. His honor, the circuit judge, found as a matter of fact, upon the testimony and the report of the referee, with exceptions, "that the defendant borrowed the money Next, as to the notes upon which judgupon representations that it was for her- ment below was granted for such deficienself; that she loaned the money, taking se-cy, if any, as might exist after the applicacurities therefor; that she received benefit tion of the proceeds of the land ordered to from said securities; that she had claimed be sold. These notes, as conceded on all the benefit of said securities against the un-hands, were given for money borrowed by secured creditors of her debtors; that she the defendant. There was no evidence, at had declared, under oaths, that those secu- least no such fact has been found, that the rities were her separate property, and an- money was either borrowed or used for the nounced her intention ever since the incep- separate estate of the defendant; on the tion of this suit of holding them as her prop- contrary, there was much evidence that the erty," and upon these facts he predicated money went into the hands of her husband. a judgment of foreclosure for $954.69 against But take the facts as found by the circuit the property described in the complaint, judge, and as stated in the beginning of the with the costs and disbursements, includ- opinion, that the defendant borrowed moning a fee of $75 for the attorneys, with leave ey for herself, and that she used it by into plaintiff to apply, in term-time, for the vesting in the securities referred to by his usual formal decree in foreclosure, which honor, there is still nothing in it but a case was afterwards prepared and granted, with of borrowing. Now, the question arises, leave to enter judgment and issue execution can a married woman make a valid confor any deficiency. From this decree and tract or note, based upon borrowed money judgment the defendant has appealed. As as a consideration? We repeat here, what we understand the case, there are two con- we have several times stated before, that a tracts involved: First, the notes; and, sec-married woman's normal and common-law ond, the mortgages, assuming a mortgage condition is that of complete disability as to be a contract. His honor held the de- to contracts. Under the constitution of fendant liable upon both, ruling that she 1868, she has been invested with certain had the power to make both. The ques-powers applicable to the separate estate tion before us is, did his honor err in thus which that instrument provided for her; holding? and by the act of assembly she has been given other and additional powers, to-wit, to purchase property in her own name, and to contract and be contracted with as to As to the mortgage, we think the recent case of Aultman & Taylor Co. v. Gibert, 28 S. C. 303, 5 S. E. Rep. 806, is conclusive. In her separate property. Now, it cannot be that the defendant turned this money over contended for a moment that she is invested to her husband, taking notes and mortwith power, under the constitution, to bor- gages as security, to which she still holds row money, as her power therein is confined on, reflects light back to her borrowing it to her separate estate, to-wit, to disposing for the use of her separate estate. Does of, bequeathing, and alienating the same. it not rather show that the money was Nor can such power be claimed, under the borrowed for the use of her husband at the act allowing her to contract or be con- beginning? and, if so, does not the transactracted with as to said separate estate, un- tion present an apt illustration of how easless it appears (the burden of showing ily the whole scheme of the act might be dewhich is upon the plaintiff) that the money feated, and the previous decisions of the borrowed was for the use, in some way, of court undermined and evaded, and the prosaid estate. Can it stand under the act visions of the constitution that the separate giving power to purchase property? This estate of the wife should in no event bemust depend upon the intention of the gen- come liable for the debts or contracts of the eral assembly, to be reached, in part, by the husband uprooted, by simply allowing a terms used in the act. Construed under this married woman to borrow money in sirule, we do not think that the term "pur-lence, mortgage her separate estate to sechase property" includes, or was intended cure its payment, and then turn the whole to include, an act of borrowing, for the rea- amount over to her husband? How few son that this term has very different signifi- wives could resist the importunities of failcations; and, when each is intended, the ing husbands, and if such was the law, as words indicating such intentions doubtless contended for, as to these notes, how few would be used. But in addition to this,going separate estates would be in existence long! outside of the exact phraseology of the act, None, except, perhaps, where they were and looking at its intent, and the general really of no use, because not needed. scheme of the constitution and of the acts of assembly, with their amendments, upon the subject of married women and their powers, we fail to see a single hook upon which to frame a doubt as to the meaning and purpose of this scheme. Its evident and patent purpose was to give to married women a separate estate in all the property which they might obtain by gift, grant, devise, bequest, or otherwise, and to wall the property in so that it should be hers, and hers alone, and especially to be guarded against the debts and contracts of her husband. It being intended as hers, and hers alone, of course it was necessary to her proper enjoyment of it that she should have some powers in connection with it; hence the powers granted in the constitution, towit, to dispose of, to bequeath, and to alienate. Hence, also, under the act, the power to contract and be contracted with generally as to said separate property. Hence, too, was it that in the act of 1870 she was given the power to purchase property simply, not including the power to borrow money generally, however, because that power was embraced already in the power to contract and be contracted with, etc., whenever it appeared that the borrowing was for the separate estate. In this case it does not appear that the money borrowed was for such use, and therefore we cannot concur in the judgment below that the notes were valid and legal instruments. No doubt the facts found here present this case in a very unfavorable light against the defendant, and show very strong moral grounds why the defense relied on here should never have been interposed; but what have these grounds to do with the legal question before us? Our province extends to and embraces all legal questions, but it does not include those resting upon only moral considerations. If we were a court of morals or a court of legislation, we might look into these facts; but, being a court simply of construction and determination of what the law is, and not what it should be, we must decide the law as we understand it, regardless of consequences or surroundings. We do not see how the fact KNOXVILLE CITY MILLS Co. v. LOVINGER. (Supreme Court of Georgia. Oct. 28, 1889.) EXECUTION-ISSUANCE-COMPUTATION OF TIME. 1. Under Code Ga. § 4172, providing that in all cases where no appeal lies or none is entered a justice of the peace shall issue execution on a judgment after the expiration of four days, (Sundays excepted,) the issuance of an execution within the taken advantage of in a collateral proceeding or by four days is only an irregularity, and cannot be any one except the judgment debtor. 2. Under Code Ga. § 4, providing that when a privilege is to be exercised or a duty discharged within a number of days, only the first or last day shall be counted, an execution issued July 30th, on a judgment rendered July 26th, is issued within the four days prescribed by section 4172. Error from superior court, Fulton coun- SIMMONS, J. It appears from the record in this case that the Knoxville City Mills Co. obtained four judgments in a justice's court against Daniel Lovinger. The judgments were rendered on July 26, 1887, and executions thereon were issued July 30, 1887. On January 26, 1888, said executions were levied upon certain real estate as the property of the defendant. Julia Lovinger, the wife of the defendant, interposed a claim to the property, and the claim was returned to the superior court of Fulton county for trial. The case coming on for trial, the plaintiff offered the executions in evidence. The claimant objected to their reception, and moved to dismiss the levies, on the ground that the justice who rendered the judgments issued the executions before the expiration of four days after the date of the judgments. The court excluded the executions, and dismissed the levies, and the plaintiff excepted. Our Code, § 4172, says: "In all cases when no appeal lies or none is entered a justice of the peace or commissioned notary public shall issue execution after the expiration of four days, (Sundays excepted.)" The judgments in this case were rendered July 26th, and the executions were issued on July 30th. Section 4 of the Code provides that "when a number of days is prescribed for the exercise of any privilege, or the discharge of any duty, only the first or last day shall be counted." Applying this rule to the issuance of these exe cutions, and counting only the first or last day, the 26th or 30th,-it will be seen that they were issued before the expiration of four days after the judgments were rendered. Under the Code the defendant had four days after the judgments in which to enter an appeal in these cases, if he had so desired. If he had done so, the 30th of July would have been the last day on which he could have entered his appeal. If he could have entered an appeal on that day, then it was irregular, at least, for the justice to issue the executions on that day. We think, therefore, that the trial judge was right in holding that the executions were issued before the expiration of four days from the rendition of the judgments. South, held certain real estate in the city of Atlanta, which was used solely as a place for divine worship. The city paved the street on which the property was situated, and under an act of the legislature, approved September 30, 1881, issued execution, and levied on said property for its proportional part of the cost of said pavement. The trustees sought to enjoin the levy, and, on instructions of the court that, under the constitution and laws of Georgia, a church is exempt from every kind of taxation, the jury found for complainants. A motion for a new trial was overruled, and defendant brought error. J. B. Goodwin and J. T. Pendleton, for plaintiff in error. H. E. W. Palmer, for defendants in error. BLANDFORD, J. The facts of this case are fully set out by the reporter. When this case was here before, it having been brought here by the defendants in error, We think, however, that he erred in ex- (76 Ga. 181,) the main question decided and cluding the executions, and dismissing the adjudicated by this court as a question of levies thereon. The fact that they were is-law was that the city of Atlanta had no sued before the expiration of the four days authority, under its charter or the amenddoes not make them void. It was only an ments thereto, to issue executions against irregularity, and the claimant could not property of the defendants in error for astake advantage of this irregularity in this sessments made by the city for improvecollateral proceeding. Freem. Ex'ns, § 25, ments in paving the public street alongside says that an execution issued as these were of such property, it appearing that the prop"is erroneous, but, like an erroneous judg-erty thus assessed, and against which the ment, it must be respected, and may be en-executions were issued, was used exclusiveforced, until it is vacated in some manner ly by the defendants in error as church prescribed by law. No one but the defend- property, for purposes of divine worship; ant can complain of it, and even he cannot and the judgment of the chancellor refusdo so in any collateral proceeding. Under ing to grant an injunction to stay these an act of congress providing that until the executions was reversed upon that ground expiration of ten days execution shall not alone. This decision went to the whole issue,' certain executions were collaterally case, and, being rendered by the court of objected to on the ground that they were last resort, was a final adjudication of this issued within ten days, but the court said: case. The effect of the decision and judg 'If irregular, the court from which they is- ment of this court was to authorize and resued ought to have been moved to set them quire the chancellor to decree a perpetual aside. They were not void, because the injunction against the further proceeding marshal could have justified under them, of these executions. When the case came and if voidable, the proper means of destroy-up in the court below to be tried by a jury, ing their efficacy have not been pursued."" which was unnecessary, there was no fact, So in New York, against the objection that new or otherwise, brought into the case an execution had, contrary to the statute, other than was in the case when it was beissued within 30 days after the rendition of fore this court at the first hearing. There the judgment, the court of appeals held that was really nothing for a jury to try, and until set aside, although issued without de- the order and direction of the court below fendant's consent, the process was valid, instructing the jury to find for the defendand no one could take advantage of such ants in error was not error. irregularity but the defendant in the execution. Judgment reversed. It is insisted by counsel for the plaintiff in error that the first judgment of this court reversing the court below was not res adjudicata, inasmuch as the judgment CITY OF ATLANTA V. TRUSTEES FIRST M. reviewed here was the refusal of the court E. CHURCH, SOUTH. (Supreme Court of Georgia. Oct. 11, 1889.) RES JUDICATA. On an appeal from an interlocutory decree refusing to enjoin a city from levying an execution on property for assessments for paving the street on which the property was situated, it appeared that the property was used exclusively for divine worship, and this court decided that, under the constitution of the state, the city had no authority to issue execution against it for such assessments. Held, that the decision went to the whole case, and was a final adjudication thereof. Error from superior court, Fulton county; M. J. CLARKE, Judge. The trustees of the First M. E. Church, to grant an interlocutory order for injunction. Where the whole case is adjudicated by this court upon a question of law, the judgment is a final judgment, and is not the subject-matter of review in that case. The supreme court of the United States, in Commissioners v. Lucas, 93 U. S. 113, determined, in a case which originated in the state of Indiana, where the supreme court of that state had reversed the circuit court for refusing to grant an injunction, and the decision of that court was upon a question of law as to the constitutionality of a certain act of the legislature of that state, which went to the whole case, that that decision was final, and could not be re |