
    8831
    BANKS v. FRITH
    (81 S. E. 677.)
    Appeal and Error. Equitadle Issues. Mortgage. Evidence.
    3. An answer to a complaint for the possession of land conveyed by defendant to plaintiff which admitted the execution of a deed, but, alleged that it was intended as a' mortgage, and not an absolute conveyance, raised an equitable issue, upon which the findings by the trial Court can be reviewed.
    2. In an action for possession of land, where the defense’was that an absolute deed was intended as a mortgage, evidence held, not’clear, unequivocal, and satisfactory that the conveyance was intended as a mortgage, and therefore not sufficient to sustain a finding that it was so intended.
    Before Shipp, J.,
    Abbeville,
    October, 1913.
    Reversed.
    Action by Beulah Y. Banks against W. 'H. Frith. Judgment for defendant and plaintiff appeals.
    The issues are stated in the opinion of the Court, as follows :
    In order to understand this case, it is well to set out the complaint and answer.
    The complaint is as follows:
    “The plaintiff above named, by her attorney, Wm. N. Graydon, complaining of the above named defendant, alleges:
    “I. That on the twenty-first day of November, 1904, the defendant made, executed, and delivered to the plaintiff, whose maiden name was Yarborough, for and in consideration of the sum. of five hundred dollars tO' him paid by the plaintiff, a deed in fee simple, with general warranty, to'.the following described tract of land, to wit: ‘All that tract or parcel of land, situate, lying, and being in Cedar Springs township', Abbeville county, in the State aforesaid, containing one hundred acres, and bounded by lands, of J. R. Thornton, A. K. Watson, Larkin Frith, and others — the same being the east side of my home place upon- which my residence is situated.’
    “II. That this plaintiff, being at that time unmarried, did not demand exclusive possession of said land, but lived on it with the defendant, and continued to reside there the most of the time, until her marriage in June, 1911.
    “HI. That for the year 1912 the said defendant agreed to- pay this plaintiff rent for said tract of land, which is reasonably worth two. hundred and fifty dollars per year, but said defendant has failed and refused to- pay said rent to' this plaintiff. That the land of the plaintiff, from which this one hundred acres was cut, consisted of about one hundred and ninety-two and one-half acres, but the line between the defendant and the plaintiff has never been surveyed in accordance with said deed, and, when this plaintiff demanded that said land be run off to. her, the defendant would not allow the line to- be run north and south, so< as to* give the plaintiff the land she bought on the east side of said place, but attempted to run said line east and west, which does not give the plaintiff the land she bought.
    “IV. That this plaintiff has demanded possession of said land, and demanded- that the line be- run so as. to give her the land which she bought, but the defendant has refused to surrender possession of said land, and refused to. allow the line to be run, as called for by plaintiff’s deed.
    “V. That this plaintiff has -been damaged by wrongful withholding of said land in the sum of two- hundred and fifty dollars.
    “Wherefore, the plaintiff demands judgment against the defendant:
    “ (1) That the Court order that one hundred acres of said land be surveyed by a surveyor appointed by this Court, on the east side of said tract of land, as called for by plaintiff’s deed.
    
      “(2) That the plaintiff have judgment for the possession • of said one hundred acres of land, and two hundred and fifty dollars, her damages for such withholding.
    “(3) For the sum of two' hundred and fifty dollars, rent for the year 1912.
    “(4) For such other and further relief as to the Court may seem to be just and proper, and for the costs and disbursements of this action.”
    The answer of the defendant is as follows:
    “The defendant above named, answering the complaint herein, respectfully shows to the Court:
    “I. Admits so1 much of the plaintiff’s complaint as alleges the execution of the deed therein described, but he denies the same was in fee simple, or that it wa.s intended thereby to convey to the plaintiff the fee-simple title in the said tract of land. On the other hand, he alleges that the deed was made for the purpose of securing the sum of five hundred ($500.00) dollars, then due the plaintiff by the defendant, and the understanding and agreement of the parties was that the said deed should be held as a mortgage to secure the repayment of the said sum of five hundred ($500.00) dollars, and that, when the said debt was paid, the said deed was to’ become null and void.
    “II. The defendant denies each and every other allegation of the plaintiff’s complaint.
    “Further answering this complaint, this defendant alleges :
    “III. That about November 1, 1904, the defendant herein borrowed from the plaintiff the sum of five hundred ($500.00) dollars, money which she had received from a settlement of her mother’s estate, and, in order to secure the repayment thereof, this defendant executed to the plaintiff the deed described in paragraph I of the complaint herein under an; agreement by and between the plaintiff ’ and the defendant by which the said deed was to be held simply as a security of the said indebtedness, and this defendant alleg-es that it was not intended thereby to convey a fee-simple title to the said tract' of land.
    “IV. The defendant further alleges that since the execution of the said deed he has paid the plaintiff, as interest on the said debt and sum of money and as part payment of the principal, the sum of three hundred seventy-seven and 72-100 ($377.72) dollars, which amount was paid as follows: 1907, forty-four ($44.00) dollars; 1908, forty ($40.00) dollars; 1909, fifty ($50.00) dollars; 1910, forty ($40.00) dollars; 1910,fifteen($15.00) dollars; 1911, sixty-three ($63.00) dollars; 1912, ninety and 72-100' ($90.72) dollars; 1912, twenty-five ($25.00) dollars. The defendant further alleges that the plaintiff is indebted to- him for rent of another tract of land for the year 1912, in the sum of one hundred and twenty-five ($125.00) dollars, which sum he pleads as set-off and counterclaim to the amount due by him to the plaintiff herein.
    “V. This defendant further alleges that he has offered several times to pay to this plaintiff the balance due her on the said loan, and that he is still ready and willing to pay the same to the plaintiff, but the plaintiff herein, since her marriage, has demanded the possession of the said tract of land described in the complaint, in violation of the agreement between the parties, and that he has refused to give the same to her.
    “VI. This defendant further alleges that at the date of the execution of the said alleged deed the land described therein was worth at least the sum of two- thousand ($2,000.00) dollars, and since the execution- thereof neither the plaintiff nor any. one for her every (sic) paid the taxes thereon or returned the same for taxation, nor rented the same, nor attempted to collect any of the rents thereof, but, in recognition of the said agreement between the parties, the plaintiff herein has held the ’said deed as a mortgage, and from time to time has collected interest thereon until after her marriage, when, for the first time, she attempted to violate the said agreement, and attempted to return the said premises for taxation in her own name and get possession of the said premises from the defendant herein, contrary to- the agreement between the parties.
    “Wherefore defendant prays:
    “(1) That the complaint herein be dismissed with costs.
    “ (2) That the deed described in the complaint be declared to- be a mortgage to- secure the indebtedness existing at the date of the said deed and thereafter, and that the Court will order an accounting of the amount, if any is due on the said mortgage debt, to- the end that the defendant herein may pay the same to the plaintiff, and that the said deed be delivered up upon the said payment /for cancellation.
    “(3) That defendant herein have any other relief as to the Court seems equitable and just.”
    All issues of law and fact were referred to1 R. E. Hill, Escj., master for Abbeville county, who found for the plaintiff on all issues except as to rent. The cause was heard on Circuit by Judge Shipp; who reversed the findings of the master, and found that the deed set up' in the pleadings was a mortgage, and ordered foreclosure. From this judgment the plaintiff appealed on twenty-two' exceptions. These exceptions raise but two questions: (1) Was the deed a mortgage? (2) Is appellant entitled to- rent?
    
      Mr. Wm. N. Gray don, for the appellant, cites:
    
      No presumption from possession being unchanged: 34 S. C. 416; Code Civ. Proc. 126. Proof necessary to show absolute conveyance a mortgage: 3 Pom. Eq. Juris., sec. 1196; 3 Rich. Eq. 153; 52 S. C. 54; 41 S. C. 163; 45 S. C. 33; 54 S. C. 184; 55 S. C. 51; 66 S. C. 85; 61 S. C. 575; 88 S. C. 318; Bass v. Bell, 64 S. C. Essentials of a mortgage: 31 S. C. 276; 3 Pom. Eq. Juris. 1195.
    
      Mr. D. H. Hill, for respondent, cites:
    
      Burden of proof: 54 S. C. 191; 70 S. C. 67; 41 S. C. 163; 52 S. C. 54; 6 Peters 629; 53 S. C. 19; 50 Am. Dec. 193. Indicia, of possession: 20 Am. & Eng. Enc. of L. (2d ed.) 95; 12 Am. Rep. 671. Essentials of mortgage: 12 Am. Rep. 671; 1 Sug. Vendors (8 Am. Ed.) 302; 43 S. W. 437; 40 S. W. 101; 17 S. W. 323; 20 So. 614; 22 Pick. 526, 530; 4 Pick. 349; 14 lb. 467, 478; 12 How. 139; 1 Sandf. Ch. 56; Story’s Eq. 239, 245; Kerr, Fraud and Mistake, 186; 5 Binn. 99. Presumption from unchanged possession: Cotter ell'v. Purchase: Cad. Temp. Talbort 61; 4 DeGex & Jones 16; 7 Cranch 218; 2 Woodb. & Min. 426; 102 111. 442;'80 Am. Dec. 675; 18 N. W. 569; 20 So, 164; 53 S. C. 18; 42 111. 453; 45 Atl. 207; 19 So, 41; 77 111. 84. . Laches: 58 N. E. 1053; 12 How. 154; 50 S. C. 174.
    
      Mr. Wm. P. Greene, also for respondent, cites:
    
      Action was for recovery of possession of land, and findings of fact are not reviewable: 51 S. C. 560; 72 S. C. 287; 77 S. C. 414; 53 S. C. 45; 58 S. C. 1; 90 S. C. 320; 13 N. W. 743. The Courts of law and equity had concurrent jurisdiction: 3 Mich. 211; 34 Am. Dec. 211; 48 S. W. 999; 31 S. C. 141. Indicia from possession, etc.: 20 A. & E. Enc. of L. 938.
    April 28, 1914.
   The opinion of the Court was delivered by

Mr. Justice Fraser

(after making the foregoing statement of issues) :

The respondent raises a question as to the jurisdiction of this Court to pass on the facts, and claims that this is an action at law, and the findings of the Circuit Judge are not reviewable in this Court. This question must first be determined. The plaintiff claims the right to possession under a deed from the defendant absolute on its face. The defendant admits the execution of the .deed, but claims that, by virtue of a parol agreement, the deed is to* be construed as a mortgage, and asks the Court to so find. The defendant does not deny the execution of the deed, or claim, that it is a nullity for fraud or any other cause. He asks that his absolute deed be declared a mortgage. This is an. equitable issue that must first be determined.

The recent case of Williams v. McManus, 90 S. C. 493, 73 S. E. 1038, says: “It is undoubtedly true that a deed which appears on its face to be an absolute conveyance may .in equity be declared to. be a mortgage, if the evidence be sufficient to show that such was the intention of the parties, yet it is equally true that the presumption is that the deed is, what on its face it purports to be, an absolute conveyance, and, to establish its character as a mortgage, the evidence must be clear, unequivocal, and convincing; for otherwise the natural presumption will prevail. 3 Pom. Eq. Jur., sec. 1196; Arnold v. Mathison, 3 Rich. Eq. 153; Petty v. Petty, 52 S. C. 54, 29 S. E. 406.” The first issue in the case was: Was that deed intended- as a mortgage? This raised an equitable issue first to be tried, and this Court has jurisdiction. When a Court sends a case at law to a master, is it the master or the Judge who represents the jury?

I. The first question is: Is the evidence “clear, unequivocal, and convincing” that this absolute deed was given as a mere security for a debt? We think not. The learned Judge who- tried the case based his judgment, overruling the master, on three grounds:

(a) “The plaintiff- said she had loaned the money and taken security.” The plaintiff denied this. It is true the defendant had several witnesses to plaintiff’s one. In a case of this sort, the appearance and conduct of the witnesses is an important consideration. The master saw them, and the Judge did not. • The case shows several things that prevent the testimony of the many witnesses from producing conviction. They state things from which a mortgage is to ,be found, but do not use the word “mortgage.” The most common word is “mortgage,” and yet they all avoid it. They say that Mrs. Banks used these words time and ag'ain. The witnesses were of the family of the defendant. There were disinterested witnesses at the time of the execution of the paper, and disinterested witnesses who talked with the parties afterwards, and not one of them heard of the transaction as a loan, security, or mortgage, or anything to indicate that an absolute conveyance was not intended. It is true defendant asked for a loan, and this is a circumstance that tends to show a mortgage; but is not conclusive, and it loses much, if not all, its force under the plaintiff’s explanation. She said: 'T did not want to do that, as I might need a home some day, and didn’t think it would be wise in me to* sell my land and lend out the money. Fie said if I would sell the land he would sell me a part of his land.”

The old rule in a Court of Chancery was not to allow the conversion of land into money, in matters within its control, except upon great necessity. If the plaintiff was in bad health, it was wise for her to' want a home and enough to save her from, the necessity of living on charity. The defendant had raised her, and admits affection for her as if she were his daughter. The defendant was a widower with no1 legitimate child to1 provide for, and, whether wise or unwise, people who1 are getting old too' frequently turn their property over to their children and afterwards repent. In his answer he claimed to have paid her interest and a part of the principal in sums too small for safe investment. There is a significant absence of these payments in his testimony. His wife testified: “I heard Mr. Frith say to Beulah on their return home from Abbeville: 'Now, Beulah, I have given you a deed to 100 acres of land for your $500, so that, if anything should happen to me, you could not be knocked out of it.’ ” (Mr. and Mrs. Frith were married subsequent to the date of the deed.) What did that mean ? The defendant had that day paid one mortgage and executed another. He knew the difference. He had given to his adopted daughter that day a deed. The intention that day governs. The grantor that day said: “I have given you a deed * * * so that if anything happens to- me, you could not be knocked out.”

The case does not show that Mrs. Banks was present at the execution of the deed, and nothing was said to them or to- the friend at home about security. If the intention of the parties was to secure a debt, it is difficult to- understand why an- absolute deed was used to secure one- debt and a mortgage given for the other. This is unexplained, and unexplained is fatal. We do not'think the testimony is sufficiently “clear, unequivocal and convincing.”

(b) “There was no- change o-f possesssion of payment of rent.” As both plaintiff and defendant lived on the premises, it is not clear what change- of possession was requisite. The man on the premises would probably have managed the business, whatever the nature of the deed. As to payment of rent, the defendant cannot plead his- own wrong or take advantage o-f her leniency. The proceeds of the place seem to- have gone to- the support -of the family, and it was only natural that the man should have handled it and dealt with the tenants.

(c) “Táx return.” It is also natural that the man should have made the return, and, if she trusted him to make the return, he certainly could not revoke his deed by making the returns in his own name. He paid the taxes, but he collected the rents, and it was his duty to- pay the taxes.

1. Besides this, the grantor had the- deed p-rep-ared, and the record does not show that the grantee was present. There is no suggestion- in pleading or evidence of fraud o-r mistake. There is no reason suggested for the giving of an absolute deed, unless an absolute conveyance- was intended.

2. The defendant had a. plat made of 100 acres. Why make a plat when the conveyance was a mere security for a debt, which he expected to- pay? Why should the mortgage cover 100 acres, instead o-f 195 acres? If the deed was a mere security which the grantor expected to pay, and the grantor was not “cramped for money, and never had been,” why not include'the whole tract? The grantor had the plat made and made for Mrs. Banks.

3. The advertisement was dictated by Mrs. Banks, it is true, but it stated that 100 acres belonged to Mrs. Banks and 95 acres to Mr. Frith. It was taken down in writing and Mr. Frith was present. Mr. Percival, a disinterested witness, said: “Mr. Frith agreed to that, and said part belonged to him and part belonged to Mrs. Banks.” -The' deed was in writing; the plat was in writing, and the advertisement was written. All the writings in the case give to Mrs. Banks the'land, and not a mere securit)''.

It puts it mildly to say the proof that the absolute deed was intended as a mortgage is not “clear, unequivocal and convincing.”

II. The appellant did not prove that there was an agreement to pay rent by the preponderance of the evidence, and cannot recover rent.

The judgment of this Court is that the judgment appealed from is reversed, and the case is remanded to the Circuit Court, that proper proceedings may be had to lay off the line between the plaintiff and the defendant.

Mr. Chiee Justice Gary concurs.

Mr. Justice Hydrick,

concurring. I concur in the finding that the deed was not intended as a mortgage; but I think plaintiff is entitled to recover the rental value of the land from the date of her demand for possession thereof. Having held that the land was hers, and that she was entitled to possession thereof, I do not see how the Court can deny her the right to recover the rental value thereof from the date of her demand for possession. No agreement to pay rent was necessary. The law imposes the payment of it as the proper measure of damages for unlawfully withhold ing the possession from her. She demanded possession in December, 1912, and I think-she is entitled to- recover the rental value of the land from that time.

Mr. Justice Watts.

I concur, but agree with Mr. Justice Hydrick that plaintiff is entitled to- rent as indicated by him.

Mr. Justice Gage,

dissenting. I canno-t agree with the majority.

First. The complaint stated a case at law for the recovery of specific real property. The answer denied plaintiff’s assertion of title. That made a case at law, and for trial by a jury. Code o-f 1894, sec. 274. I-t is true the answer contained other allegations ; but that is allowable. Code o-f 1894, sec. 171. The parties waive trial by jury, as they have a right to do. Code o-f 1894, sec. 288. The judgment of a Judged substituted for that of a jury, may not be reviewed here, in a case like this. Stack v. Haigler, 90 S. C. 320, 73 S. E. 354.

Second.' On- the facts if reviewab-le, the judgment below is right. The justice of the case is with defendant. The land in issue was worth, at the making of the deed, $2,500; there is no- denial of that by anybody. The plaintiff demands it for $500. The defendant was then an- old man past 70 years of age, and unable to- read or write. The plaintiff was young and somewhat literate. The land in issue is the seat of defendant’s only residence, where he has lived for more than forty years. The defendant was pressed for money when the $500 was advanced; the receipt of it and the execution of the- deed was not spontaneous. The plaintiff never exercised acts of ownership- and dominion, nor did she ever p-ay taxes on the land. The plaintiff admitted to three or four persons that the transaction was a loan and not a sale.

It is true defendant has married since the transaction; and it is also- true the plaintiff has done likewise. It is- true the defendant has done some things inconsistent with his present claim; but he has done more things consistent therewith.

The proof satisfies me that the transaction did not amount to a sale, but to a mortgage-. That conclusion loses the plaintiff nothing; the contrary conclusion loses the defendant all.

I think the judgment below ought to be affirmed.  