No mortgagee shall be entitled to maintain any possessory action for the real estate mortgaged, even after the time allotted for the payment of the money secured by mortgage is elapsed, but the mortgagor shall be deemed the owner of the land and the mortgagee as owner of the money lent or due and the mortgagee shall be entitled to recover satisfaction for such money out of the land by foreclosure and sale according to law. But notwithstanding the foregoing provision all releases of the equity of redemption shall be binding and effectual in law.

SECTION 29-3-10 recognizes that a mortgagee has an interest in the mortgaged property. State v. Leach (S.C. 1984) 282 S.C. 178, 318 S.E.2d 267.

Effect of 1879 amendment. Sims v. Steadman (S.C. 1902) 62 S.C. 300, 40 S.E. 677.

2. Historical background

Before the act of 1791 legal title passed to mortgagee upon defeasance, and he could maintain action for the land, Verree v Verree (1807) SCL 211. State v Laval (1827) 15 SCL 336. Stoney v Shultz (1834) 10 SC Eq 465. Drayton v Marshall (1839) 14 SC Eq 373. Mitchell v Bogan (1897) 45 SCL 686. Laffan v Kennedy (1868) 49 SCL 246. Reeder & Davis v Dargan (1881) 15 SC 175. Durand v Isaacks (1826) 15 SCL 54. Stoney v Shultz (1834) 10 SC Eq 465. Mitchell v Bogan (1897) 45 SCL 686. Laffan v Kennedy (1868) 49 SCL 246. Williams v Beard (1870) 1 SC 309. Warren v Raymond (1879) 12 SC 9.

3. Nature and effect of mortgage

Mortgage does not convey any estate, even after time for redemption has passed. Thayer v Cramer (1826) 6 SC Eq 395. Lowndes v Chisholm (1827) 7 SC Eq 455. Simons v Bryce (1878) 10 SC 354. Warren v Raymond (1879) 12 SC 9. Annely v De Saussure (1879) 12 SC 488. Reeder & Davis v Dargan (1881) 15 SC 175. Warren v Raymond (1882) 17 SC 163. Hendrix v Seaborn (1886) 25 SC 481. Johnson v Johnson (1887) 27 SC 309, 3 SE 606. Seignious v Pate (1890) 32 SC 134, 10 SE 880. Hardin v Hardin (1891) 34 SC 77, 12 SE 936. Glover v United States (1896) 164 US 294, 41 L Ed 440, 17 S Ct 95.

Under this section [Code 1962 Section 45-51] a mortgage on real property is merely a pledge, the mortgagee having a mere lien. Citizens' & Southern Bank of South Carolina v. Pine Forest Inn Co., 1929, 31 F.2d 301.

Mortgage represents security for obligation, not full payment thereof; it is not implicit in taking of mortgage that creditor is to look only to property for satisfaction of debt. Perpetual Bldg. and Loan Ass'n of Anderson v. Braun (S.C. 1978) 270 S.C. 338, 242 S.E.2d 407.

Chattel mortgage does not vest title to mortgaged property in mortgagee at time of execution of mortgage, though this section [Code 1962 Section 45-51] makes no reference to personal property. General Motors Acceptance Corp. v. Hanahan (S.C. 1928) 146 S.C. 257, 143 S.E. 820.

Deed of conveyance and separate agreement to reconvey constitute a mortgage. Francis v. Francis (S.C. 1907) 78 S.C. 178, 58 S.E. 804.

Under this section [Code 1962 Section 45-51] a mortgage is not a conveyance. Burkett v. Whittemore (S.C. 1892) 36 S.C. 428, 15 S.E. 616.

4. Application in particular cases

Release of the equity of redemption operates under this section [Code 1962 $ 45-51] as a conveyance of land. Mitchell v Bogan (1897) 45 SCL 686. Simons v Bryce (1878) 10 SC 354. Navassa Guano Co. v Richardson (1887) 26 SC 401, 2 SE 307. Tant v Guess (1892) 37 SC 489, 16 SE 472.

Mortgagee has equitable interest which should be protected in partition suit by making him a party thereto. Ex parte Johnson (S.C. 1928) 147 S.C. 259, 145 S.E. 113.

A decree in a foreclosure action that plaintiff have judgment against defendants for the property subject to this action was held merely to exclude the idea that a personal judgment was intended, and not to give plaintiff judgment for possession of the land but to provide for satisfaction by sale pursuant to this section [Code 1962 Section 45-51]. Citizens' Bank v. Davis (S.C. 1923) 126 S.C. 175, 119 S.E. 580.

Where there are no inequitable circumstances after maturity of a mortgage, the mortgagor has the power to make an absolute conveyance to the mortgagee in satisfaction of the debt, especially in view of this section [Code 1962 $ 45-51] recognizing the validity of a release of the equity of redemption. Brockington v. Lynch (S.C. 1922) 119 S.C. 273, 112 S.E. 94.

Mortgagee in possession is entitled to hold the property for subsequent debts, where deed was intended to secure subsequent indebtedness. Cox v. Enterprise Bank (S.C. 1920) 115 S.C. 191, 104 S.E. 693.

Under this section [Code 1962 Section 45-51] the legal title upon the execution of a mortgage of real estate remains in the mortgagor, and, when the mortgagor dies leaving his wife and children in possession, the title descends to them and the premises cannot be sold by the assignee of the mortgage under a power of sale contained in the mortgage without making the mortgagor's heirs at law parties to the proceedings. Johnson v. Johnson (S.C. 1887) 27 S.C. 309, 3 S.E. 606, 13 Am.St.Rep. 636.

5. --Where mortgagee holds adversely to mortgagor's title

Legal relationship does not prevent mortgagee in possession from holding adversely to mortgagor's legal title, nor preclude him from perfecting legal title in himself by adverse possession in view of this section [Code 1962 $ 45-51]. Frady v. Ivester (S.C. 1924) 129 S.C. 536, 125 S.E. 134.

Where mortgagors executed a deed to the mortgagee providing that it should be a mortgage until a specified date, and should then become absolute if the mortgagors had failed to pay, and the mortgagee, after such date, without other consideration than the mortgagors' inability to pay, took possession, the relation of mortgagor and mortgagee continued and the law imposed the duties of a trustee upon the mortgagee, and she could not hold adversely to the rights of the mortgagors until she either surrendered possession or gave notice of an adverse possession. Frady v. Ivester (S.C. 1921) 118 S.C. 195, 110 S.E. 135.

6. Fraud

Mortgagors who claimed that they were harmed by entering into mortgage agreement secured by property with over-estimated appraisal value failed to establish elements of fraud in action against mortgagee; mortgagors testified that they did not actually rely on appraisal in purchasing property, mortgagors made no effort to independently ascertain property's value before purchase, and there was no evidence that the property was not worth the appraised amount at the time of the appraisal. Robertson v. First Union Nat. Bank (S.C.App. 2002) 350 S.C. 339, 565 S.E.2d 309, rehearing denied.