21 S.C. 392 | S.C. | 1884
Lead Opinion
The opinion of the court Avas delivered by
This is an action to recover the possession of a certain tract of land in Abbeville county, knoAvn as the “River Place.” The complaint simply alleges, in general terms, that the plaintiff has title, without setting out the sources of his title.
The anwser sets up three defences. 1. A general denial of plaintiff’s title. 2. That at a sale of the real estate of one Cunningham, deceased, made by his executor, under an order of the court, on December 3, 1877, the defendant, Josephine, bid off the “Home place” and the “River place” (the latter being the tract in controversy) at the sum of $1,609.75; that the said Josephine “was the principal devisee of the said J. J. Cunningham, and
The third defence is stated in the answer as follows: “That on December 1, 1879, before the payment of the said amount was due, the plaintiff having found a purchaser for the Home place, upon which the defendants were then living, came to the defendant, J. A. Martin, and proposed to her that if she and her husband would move from the Home place to the River place, that he, the plaintiff, would take the Home place for the debt and give them good and sufficient title to the River place, which they did. That the plaintiff then sold the Home place for $2,000, an advance of $400 on what the bid was for both places. That the_ said defendant then had an opportunity of borrowing the money and paying off the whole amount, but plaintiff said to take the River place and be sure of a home, and so defendant and her husband, relying on plaintiff’s agreement, moved to the River place on January 6 following, and have been there ever since. That the said defendant, J. A. Martin, has made valuable improvements on the place and cultivated and used the same as if her own property. That the said plaintiff has promised repeatedly to give the defendant, J. A. Martin, title to the said place, but has never done so.”
The cause came on to be heard before Judge Kershaw and a jury, when the deed from Cothran, as executor, to the plaintiff was offered in evidence, as well as the contract above set forth.
The judge states that the plaintiff offered testimony tending to show that he took the bid of Mrs. Martin off her hands at her request, and without any condition or qualification whatever; that the subsequent written agreement of January 28, 1878, was made at the request of the defendant, and as a favor to her; that after the expiration of the time limited by the agreement for the payment of the money, she gave up the purchase, and that he, from kindness merely; allowed her to remove to the River place, consenting that she should remain there two years free of rent; and he instructed the jury that if they believe this testimony their verdict should be for the plaintiff.
The defendant, on the other hand, offered parol testimony tending to show that the agreement between her and the plaintiff was that he was to advance the money to pay for the land and take the title as security for such advance, and that he was to re-convey to her, upon payment of the purchase money, the written agreement above referred to being executed merely for the purpose of securing to her the right to a reconveyance when the purchase money .was refunded to him, and giving to her two years within which to make such payment. This testimony was received subject to objection, and the judge ruled that it was incompetent because it tended to change the character of the written agreement, in which there was no ambiguity and nothing which seemed to require explanation; saying to the jury that, “whatever may have been the terms of the negotiations which preceded
He therefore instructed the jury that the written agreement, taken in connection with the previous conveyance to the plaintiff, makes out an absolute title in the plaintiff, duly qualified by the terms of that paper; that such agreement was not a mortgage, but a conditional sale; that time was of the essence of the contract, and if Mrs. Martin failed to pay or tender the money at the day appointed, December 3, 1879, the title to the land became absolutely vested in the plaintiff, without qualification, unless before that time some new relations were established between the parties by a valid contract. The judge then brought to the attention of the jury the fact that the defendant claimed that there was such an additional contract, alleged by the defendant in her answer, stated above as the third defence, and he instructed the jury that if such allegations were established, and such additional contract was made before December 3, 1879, then the plaintiff could not recover; but if no such additional contract was made, or if made after December 3, 1879, rvhen the defendant had no rights under the contract for a conditional sale, which could form the basis of a valid verbal agreement, then the verdict must be for the plaintiff.
The jury rendered a verdict for the plaintiff, and judgment being entered upon the verdict, the defendants appeal upon the following grounds: “1. Because, it is respectfully submitted, his lipnor erred in charging the jury that the agreement, executed January 28, 1878, taken in connection with the previous conveyance, must be considered as containing the whole contract, and cannot be varied or contradicted by any verbal agreement, upon the same subject, which preceded it. 2. Because, it is respectfully submitted, his honor erred in refusing to hold that it ivas competent to show that the deed of December 3, 1877, executed on 24th, absolute on its face, was in fact a security for a loan,
We do not think that the Circuit judge charged exactly what is imputed to him in the first ground of appeal. He did not charge that the written agreement of January 28, 1878, taken in connection with the previous conveyance, constituted the whole contract between the parties, but his charge was that the written agreement constituted the whole contract between the parties, and that such agreement, taken in connection with the previous conveyance, “makes out an absolute title in the plaintiff to the land in dispute at the date of the agreement, duly qualified by the terms of that paper.” So that, strictly speaking, the point raised by this ground of appeal is not properly before us. But waiving this,,we will consider whether there was any error in the charge, as we understand it, in connection with the second ground of appeal.
It is true, as contended for by the respondent, that it does not appear that there was any request by appellant to charge the proposition of law as contended for by appellant in the second ground of appeal, but this ground may well be regarded as really an exception to the ruling of the Circuit judge as to the competency of the parol testimony adduced by the appellant for the purpose of showing the understanding between the parties at the time the bid was transferred to plaintiff and the title made to him. The judge held such parol testimony incompetent, because the parties having subsequently entered into a written agreement upon the same subject, all their previous negotiations and understandings must be regarded as merged in such wrritten agreement, and that, in the absence of fraud or mistake, or ambiguity in the terms of such written agreement, it must be regarded as containing the whole contract between the parties, and that its terms cannot be varied or contradicted by any parol testimony as to
While this is, no doubt, true as a general proposition, and well sustained by the authorities cited in respondent’s argument, yet we do not think it true in a case like the one under consideration. The law' looks with jealousy and suspicion upon all dealings between the mortgagee and the mortgagor, from the supposed influence which the former has over the latter. If therefore a deed, absolute on its face, is shown (as it may be shown by parol evidence) to have been executed merely as a security for a debt, and not intended as an absolute transfer of title, the terms of such agreement or understanding entered into at the time of the execution of the deed are not merged in any subsequent written agreement entered into by the parties.' If it is once shown that the deed, though absolute on its face, was, at the time it was executed, only intended as a security for a debt, it will operate only as a mortgage, and it cannot be converted by any subsequent written agreement into an absolute conveyance, unless such subsequent agreement is based upon a sufficient consideration, and is shown to have been fairly made, without undue influence by the creditor; and the burden of showing this is upon the mortgagee. In other words, it must amount to a sale of the equity of redemption, fairly made, upon sufficient consideration. These views are fully supported by authority. Russell v. Southard, 12 How., 139, recognized in Lee v. Lee, 11 Rich. Eq., 582, and followed by Babcock v. Wyman, 19 How., 289; Villa v. Rodriguez, 12 Wall., 323; Morgan v. Shinn, 15 Wall., 105; Peugh v. Davis, 96 U. S., 332; Brick v. Brick, 98 U. S., 514.
But in considering the correctness of a ruling or charge of the Circuit judge, we must look at it, not as an abstract proposition, but with reference to the case as made by the pleadings and evidence. In this case the defendant, by her answer, did not set up any agreement or understanding entered into between herself and the plaintiff, at the time her bid was transferred to him, different from that contained in the written agreement of January 28, 1878, but, on the contrary, she expressly refers to and relies upon such agreement as containing the terms and conditions upon which her bid was transferred, and to that, therefore, she must
The next inquiry is that raised by the third ground of appeal, to wit: whether there was any error in charging the jury that the agreement of January 28, 1878, was a conditional sale. We do not see how there can be any question upon this point. The parties have expressly said in the agreement itself: “this paper is not a mortgage but a contract for a conditional sale,” and the defendant herself in her answer has twice designated the paper as a contract for a conditional sale, and this ought to be conclusive.
The questions whether there was any error in that part of the charge where the jury were instructed “that time was of the essence of that contract, and if defendant, Mrs. Martin, failed to pay the price stipulated, or at least to tender the same, on or before the day fixed for the payment (December 8, 1879), the land became vested in plaintiff absolutely, without qualification, unless before that time some new relations between the parties were established in relation to the land by a valid contract;” and whether there was not a practical and substantial compliance with the terms of the contract, by the sale of the Home place to Holland, and the consequent arrangement for defendant to remove from that place to the River place, have not been raised by any exception, and are not before us for consideration. We are not, therefore, to be regarded as intimating any opinion, either one way or the other, as to these points.
The only remaining question is that presented by the fourth ground of appeal. We think that it has been settled by a series of decisions in this state, that while a judge may submit issues of
The case now under consideration belongs to thp latter class. Like Adickes v. Lowry, it was an action to recover possession of real estate, in which the plaintiff sought to enforce a mere legal right; but the defences interposed were both legal and equitable in their character. The first defence presented merely legal issues and was therefore properly triable by a jury. But the other two defences were plainly equitable in their character. So far as the second defence was concerned, the Circuit judge practically determined that by his instructions to the jury; but the third defence seems to have been left wholly to the jury, and their verdict was accepted as final and conclusive, for it does not appear that the judge ever passed upon the question of fact raised by this defence, or rendered any judgment or opinion of his own thereon, but, on the contrary, simply left it to the jury, and the judgment was entered upon their verdict. Upon this ground, therefore, the case must go back.
The judgment of this court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.
Concurrence Opinion
I concur in the result. The jury found every issue of fact for the plaintiff. But as the defence
Judgment reversed.