(concurring for the reasons stated in the following separate opinion): While it has been fully and finally settled by the case of Aultman & Taylor Co. v. Rush (26 S. C., 517) and others of that class, 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. This being so, I see no reason why a married woman having separate property may not, with a view to increase such property, engage in business for herself, and contract debts or obtain advances for the purpose of carrying on such business, and pledge her separate property for the payment of the same. If she has the power to carry on such business personally, it is clear that she may also conduct it through an agent: and this, it seems to me, was precisely the nature of the transaction which is here brought in question. It was expressly stipulated, both in the bond and the mortgage, that the advances were to be made to her through her husband “as her true and lawful attorney” or agent, and accordingly the accounts on the books of plaintiffs were so kept: the charges were not made against the husband, but against him as attorney for the. wife, and the testimony shows that when money was sent by express it was directed “to W. G. Smith, attorney for S. M. Smith, and so receipted for by him,” as appears from the express *436receipts offered in evidence. The fact’testified to by the husband that the money advanced by the plaintiffs “was principally used in paying off what he was owing at that time,” cannot affect the question, unless it had been further shown (as it was not) that the plaintiffs knew of and acquiesced in such improper diversion of the money advanced to the wife. That may have been a breach of the husband’s trust as agent, but until it was shown that the plaintiffs participated therein, it could not affect their rights.
If a married woman, either personally or through an agent, obtains advances under a representation made in the instrument intended to secure such advances, that the same are to be used in carrying on business for .herself, whether the same is to be conducted by herself personally, or by an agent, she is estopped from afterwards denying such representation, as it would be a fraud upon the person making the advances; and 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. Where, however, a married woman executes an obligation to pay the debt of another, her intention to bind her separate property, though expressed in the clearest and strongest terms, does not estop her from disputing her legal liability for the payment of such debt, for the simple reason that the law has denied to her the power to contract such a debt, and therefore the expression of her intention to do that which she has no power to do, cannot bind her. But inasmuch as she has been invested with power to contract with reference to her separate estate, her representation that a given debt is of that character will estop her from after-wards disputing that fact, unless it be shown that the creditor knew, at the time the debt was contracted,' that such representation was not true, for in that case the creditor would not be misled, and there would, therefore, be no ground for the estoppel.
As to the application of the payments, I agree to what is said in the leading opinion. So also as to the claim for commissions on the cotton not shipped. That liability arose under a separate and independent contract between the husband, in his individual capacity and not as agent of his wife, and the plaintiffs; and I am unable to discover anything in the case to connect the wife *437with that contract. I think, therefore, that the plaintiffs are entitled to judgment of foreclosure for the amount of the account, after deducting the item of f 86.25 charged as commissions on cotton not shipped.