70 S.E. 410 | S.C. | 1911
Lead Opinion
April 5, 1911. The opinion of the Court was delivered by This is an action, for the purpose of having certain deeds, declared to be mortgages, and for an accounting of rents and profits.
The facts are fully stated, in the decree of his Honor the Circuit Judge, which, together with the appellants' exceptions will be reported.
We are satisfied, that the deed executed by Frank Hutchinson to W.E. Henderson, on the 20th of January, 1899, was intended as a mortgage; also, that John L. Turner, the defendant, had notice that it was so intended, at the time the deed was executed by W.E. Henderson, to him, on the 14th of January, 1905; and that he is, therefore, not a purchaser for valuable consideration without notice.
The following instrument of writing was introduced in evidence: "This indenture made this fourteenth of January, nineteen hundred and five, by and between John L. *329 Turner, party of the first part, and Hester Hutchinson, party of the second part,
"Witnesseth, That the said John L. Turner, has this day agreed to sell and convey to the said Hutchinson, all that tract or parcel of land, situate, lying, and being in Verdery township, county and State aforesaid, containing ten acres more or less, and bounded on the north by land of Hannah Field, on the east by land of Whit Hutchinson and W.P. Devlin, on the south by land of said John L. Turner, and on the west by land of Lucretia Hearst and others, being about one-third of the tract of land, formerly owned by Frank Hutchinson, and that he will make her a good and sufficient deed in fee simple, to the said tract of land, upon payment to him by her, of the sum of one hundred and thirty-two dollars and fifty cents, at any time within two years, from the date of this agreement.
"And, that the said Hester Hutchinson, hereby agrees, that she will pay the said sum of one hundred and thirty-two dollars and fifty cents to the said John L. Turner, within two years from the date of this agreement.
"And, it is expressly agreed, by and between the said parties, that time is of the essence of this contract, and that in the event of the nonpayment of said sum of money, or any part thereof, promptly at the time herein limited, then the said John L. Turner is absolutely discharged, at law and in equity, from all liability to make and execute such deed, and may treat the said Hester Hutchinson, as a tenant holding over after the termination of her lease, or may enforce the payment of said debt.
JOHN L. TURNER, (L.S.) her HESTER X HUTCHINSON. (L.S.)' mark
"In the presence of Ellis G. Graydon."
Mr. Ellis G. Graydon, an attorney of ability and long experience, testified as follows: "I prepared this contract *330 between Hester Hutchinson and Turner, on the 14th of January, 1905. I explained the whole contract to Hester and witnessed it. I explained the contract fully to Hester."
The said agreement did not undertake to bind any parties except Hester Hutchinson and John L. Turner.
Its provisions estopped her from disputing the title of Turner; and the only right in the land, which she thereafter had, was to require Turner to convey to her, the ten acres of land described in the said agreement, upon the payment of the sum of one hundred and thirty-two dollars and fifty cents, within two years from the date of the agreement.
John L. Turner testified as follows:
"When Hester Hutchinson could not pay me for her land, in the contract limit, I gave her another year. When that year was out and she did not pay, I gave her another year, in which to pay for the land. After that she asked me for further extension, I told her I would let her live in the house and work a patch, but I would take the balance of the land. Upon these conditions I granted her another year's time. Since then she refuses to surrender me possession of any of the land. She had never exercised any right of possession over any of the land, except that I sold her. She never claimed the land." Thus showing that she failed to comply with the requirements of the contract, even when further time was extended, and thereby forfeited all her rights thereunder. In so far as her interest in the land is concerned, John L. Turner must be regarded as the owner of the land.
The testimony shows that the plaintiff Whit Hutchinson and Maggie Means, and the defendant John L. Turner, now own the entire tract of land as tenants in common — the interest of Whit Hutchinson and Maggie Means each being one-third thereof and the interest of John L. Turner being the remaining third thereof.
The master in his report finds "that there is due by the plaintiffs to the defendant on his mortgage debt, the sum *331 of eighty-four and .03-100 dollars, principle and interest inclusive to date June 21st, 1910." We are satisfied that this is the correct amount now due under the mortgages.
When John L. Turner became the owner of Hester Hutchinson's one-third interest in the land, the indebtedness which was secured by a mortgage of the premises, was thereby proportionately extinguished, to wit, to the extent of one-third of eighty-four and .03-100 dollars, leaving an indebtedness of two-thirds of eighty-four and .03-100 dollars still, upon the two-thirds interest of Whit Hutchinson and Maggie Means. Trimmier v. Wise,
Upon the payment of two-thirds of said indebtedness, to wit, two-thirds of eighty-four and .03-100 dollars, the two-thirds interest of Whit Hutchinson and Maggie Means in said land, shall be discharged from the lien of all mortgages owned by the defendant.
The Court being equally divided in opinion the judgment of the Circuit Court stands affirmed.
MR. CHIEF JUSTICE JONES and MR. JUSTICE HYDRICKthink the judgment of the Circuit Court should be affirmedfor the reasons therein stated.
April 5, 1911.
Addendum
order dismissing petition for rehearing.
The four Justices were equally divided in opinion.
The grounds upon which the petitioners rely, are as follows: "Sec. 12, art. V. of the Constitution of South Carolina, as amended and ratified on day of January, 1911, is as follows: Sec. 12. (`In all cases decided by the Supreme Court, the concurrence of three of the Justices shall be necessary for the reversal of the judgment below, subject to the provisions hereinafter prescribed * * *.')
"The language of the old Constitution of 1895 is as follows: Sec. 12. (`In all cases decided by the Supreme Court *332 the concurrence of three of the Justices shall be necessary for the reversal of the judgment below, but if the fourJustices be equally divided in opinion the judgment below shall be affirmed, subject to the provisions hereinafter prescribed * * *.')
"It is most respectfully submitted that since the said amendment the concurrence of three Justices of the Supreme Court is necessary to make a decision in any case. The words which occurred in the old Constitution, viz.: (`If the four Justices be equally divided in opinion the judgment below shall be affirmed'), having been left out, and therefore, repealed, necessarily requires the concurrence of three Justices."
At the time hereinbefore mentioned, the Constitution was also amended, by striking out the word "three" and inserting the word "four" on line two, section 2, article V, so as to read as follows:
"Sec. 2. The Supreme Court shall consist of a Chief Justice and four Associate Justices, any three of whom shall constitute a quorum for the transaction of business * * *."
When the Constitution was adopted it was therein provided that the Supreme Court should consist of an even number of Justices. And, as this was unusual, the framers deemed it advisable, in order to prevent confusion, to state the effect of a decision, when the Justices were evenly divided in opinion, viz.: that the judgment below, should be affirmed. This was merely the adoption of the rule which would have prevailed even without that provision, especially when there was the further provision, that, in all cases decided by the Supreme Court, the concurrence of three Justices was necessary, for a reversal of the judgment below.
If the Constitution had failed to provide that a less number than the five Justices composing the Court, should constitute a quorum for the transaction of business, then *333 the appellant would have ground for contending, that a decision could not be rendered, when the Justices are equally divided in opinion, as it could not be foretold whether the fifth Justice would concur with the two Justices in favor of a reversal, and thereby change the result.
As any three Justices are sufficient to constitute a quorum for the transaction of business a decision may be rendered when the Court is composed of three members, two of whom favor affirming the judgment below, while the third is in favor of reversing it.
The fact that a fourth Justice participates does not change this result — the concurrence of three being necessary for a reversal.
It is therefore ordered, that the petition be dismissed, and that the order heretofore granted staying the remittitur be revoked.
For the foregoing reasons, the order staying the remittitur, in the case of Farrow v. Farrow, is also revoked.