Shiver v. Arthur

54 S.C. 184 | S.C. | 1899

The opinion of the Court was delivered by

Mr. Justice Gary.

The facts out of which this controversy arose are stated in the decree of the Circuit Judge, which, together with the exceptions, will be set out in the report of the case.

We will first consider the findings of fact upon which the Circuit Judge rested his conclusions, as if the burden of proof were upon the defendants. The plaintiff bases her cause of action on the alleged fact that the deed absolute on its face was, by agreement of the parties, intended as a mortgage, and not upon the fact that the transaction was a conditional sale. We state this fact because some of the circumstances relied upon by the plaintiff might have a tendency to show that there was a conditional sale, but which are inconsistent with the theory that the deed was intended as a mortgage.

1 The first circumstances relied upon by the Circuit Judge to show that the deed was intended as a mortgagee, is that the deed does not recite the true amount that was claimed to be due on the mortgage in 1884. If the deed were intended as a security for the indebtedness existing at time of its execution, it seems that it would have been natural to have inserted in the deed, as consideration therefor, the exact amount of such indebtedness, and that the inference to be drawn from the fact that the amounts are not the same, rather tends to show that the deed was based on other considerations than simply the securit}*- of the indebtedness. Another circumstance relied upon by the Circuit Judge is that the grantor did not surrender possession of the land at the time the deed was executed. The 4th paragraph of the complaint, however, alleges : “That for the year 1886 the plaintiff lived on the said tract of land, and used and enjoyed one-half of the rent, and the said William L. Arthur the other, worth about $100, and on or about the 1st day of January, 1887, the plaintiff surrendered the use and occupation of the said tract of land, except the dwelling house, to the said William L. Arthur, who, without her consent, by himself or his agents, took possession of the said dwelling house, and ever since that time has had the entire use and occupation of the said tract of land, appropriating to himself, or such uses as he saw fit, the rents and profits of the same, and has, ever since the deed of conveyance was made, paid the taxes on the said land and used the same as his own property.” If the deed were intended simply as a mortgage, the plaintiff was entitled to the possession of the land and the rents and profits thereof. Her conduct was wholly inconsistent with that of a mortgagor. She does not allege that the land was put in the possession of the grantee in order that the rents and profits might extinguish her indebtedness. The presiding Judge also speaks of the earnest effort on the part of the plaintiff, after the long lapse of time, to have the deed declared a mortgage; but the defendants as earnestly contend that it was an absolute deed and not a mortgage.

We will now state some of the circumstances showing that the deed was not a mortgage, i. The plaintiff’s testimony is very meagre, and she nowhere pretends to give the exact terms of the agreement under which the land was to be restored to her. Her answer to the following question is substantially all her testimony on this point, to wit: “What was the agreement between you and Mr. Arthur at the time you executed the deed in evidence from yourself to Mr. Arthur ? A. That the place should come back to me when the money was paid.” 2. Her long delay, when she knew as far back as 1885, that the grantee denied that she had any right to redeem. 3. The fact that Arthur had a mortgage on the land when the deed was executed, tends to show that it was not his intention to take another mortgage. 4. The acts of ownership over the land exercised by Arthur even to the extent of selling it in 1888. 5. The consideration stated in the deed was not inadequate, certainly not to any great extent. 6. The failure to demand an accounting of the rents and profits after Arthur took possession. These circumstances, as well as others, which, if it were deemed necessary, could be mentioned, satisfy the'Court that the preponderance of the testimony is against the claim of the plaintiff.

2 In order to settle the practice as to the burden of proof in such cases, the Court takes occasion to state it as follows: 1. An instrument of writing is what upon its face it purports to be. 2'. The complaint must contain the necessary allegations that the deed, though absolute on its face, was intended as a mortgage. 3. These allegations must be sustained by testimony prima facie showing that they are true. When this is done, it removes the presumption arising from the ■ fact that a paper is presumed to be what its face imports. 4. When this is done, it is incumbent on the mortgagee to remove the inference that may be drawn from such prima facie showing. This is sometimes spoken of as the burden of proof, but it is simply making it incumbent on the mortgagee to disprove the case as then made. In the case of Hall v. Hall, 41 S. C., 163, it was incumbent on the mortgagee to explain the transaction, because the facts and circumstances made a prima facie showing in favor of the mortgagor; and that case, as thus construed, in no way conflicts with the principles herein announced. The views herein expressed are in harmony with the case of Petty v. Petty, 52 S. C., 54. These conclusions render unnecessary a consideration of the other exceptions.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the complaint dismissed.