Brockington v. Lynch

• Decision Date: 26 April 1922
• Docket Number: 10881.
• Citation: 112 S.E. 94,119 S.C. 273
• Parties: BROCKINGTON v. LYNCH.
• Court: South Carolina Supreme Court

112 S.E. 94

119 S.C. 273

BROCKINGTON v. LYNCH.

No. 10881.

Supreme Court of South Carolina

April 26, 1922

Appeal from Common Pleas Circuit Court of Florence County; S.W. G Shipp, Judge.

Action by B. Frank Brockington against J. Caleb Lynch. Judgment for plaintiff, and defendant appeals. Reversed.

The agreement, report of referee, decree of circuit judge, and exceptions, referred to in the opinion, were as follows:

Escrow Agreement.

"This agreement made and entered into, by and between B F. Brockington, hereinafter called the grantor, J. C. Lynch hereinafter called the grantee, and Bank of Lake City, a South Carolina banking corporation, hereinafter called the escrow, witnesseth:

Whereas, the grantor is the owner of a certain tract of land, situate partly in the county of Florence and partly in the county of Sumter, in the state of South Carolina, containing three hundred and seventy-eight (378) acres, and bounded as follows, to wit, on the north and northeast by lands of the estate of Mrs. S. M. Dickson; on the west by lands of J. D. McNeill; on the southwest by lands of B. Truluck; on the south and southeast by lands of the estate of Ervin Dickson, same being the lands conveyed to grantor by G. G. Palmer as administrator of the last will and testament of Sarah M. Dickson, said deed bearing date January 2, 1901, and

Whereas, the guarantee is or is about to become the owner of certain mortgages thereover, aggregating the amount, to wit $14,196.32, which said mortgages are described and designated, as follows, to wit, mortgage from grantor to Bank of Lake City, dated January 14, 1908, for $5,434.78, and recorded in the office of the clerk of court of common pleas for Florence county, in Book X at page 274; mortgage from grantor to Bank of Lake City dated February 29, 1912, for $1,212.10, and recorded in the office of the clerk of court of common pleas for Florence county in Book 5 at page 475; mortgage from grantor to grantee, dated April 28, 1913, for $6,256.17, and recorded in the office of the clerk of court of common pleas for Florence county in Book II at page 365, on May 14, 1913; and

Whereas, in order to save the grantee the costs and expenses of the foreclosure of said mortgages, in the event of default, or breach of the terms thereof, said grantor has this day duly made, executed and delivered unto the escrow his certain good and sufficient fee simple deed of conveyance for said premises to hold said deed in escrow to and for the uses and purposes thereinafter set forth:

Now, therefore, and in consideration of the foregoing recitals and the things therein contained, be it remembered:

That the grantor does hereby deliver to the escrow his deed for said above-described premises, which deed said escrow promises to hold and keep and to deliver to the grantee as and for the act and deed of the grantor, on the 1st day of January, A. D. 1915, unless, on or before said date the grantor shall place on deposit with the escrow the sum of three thousand ($3,000.00) dollars to the credit of the grantee (said sum to be applied towards the payment of said mortgage debt), and upon the grantor's so doing then said escrow will continue to hold and keep said deed until the 1st day of January, A. D. 1916, and upon said last-mentioned date if the grantor has not before then paid to the grantee all sums due to him by reason of said mortgages including principal and interest, according to the terms thereof, and secured the proper receipts of said grantee therefor, then, shall said escrow deliver, as the act and deed of said grantor, said conveyance of said premises to said grantee, who shall thereupon be and become the sole and unconditional, owner of said property, and shall be entitled to the immediate possession therefor, and the whole thereof.

And the said grantee hereby promises and agrees that during the continuance of this agreement, to wit, until the 1st day of January, A. D. 1915; and, if the said sum of $3,000.00 shall be paid on or before said date, as hereinbefore required, then, until the 1st day of January, A. D. 1916, that he shall not attempt a collection of said sum or any part thereof due to him by reason of said mortgages hereinbefore mentioned, nor shall he disturb said grantor in the possession of the said premises, but on said last mentioned date (if said sum of $3,000.00 be paid as above provided), and, if not, on the 1st day of January, A. D. 1915, then and in either event, will he accept said deed from said escrow with all the rights and privileges thereby conferred, in full settlement of any and all sums due to him by said grantor, by reason of said mortgages as principal, interest or otherwise; provided, however, that at any time prior to said 1st day of January, A. D. 1916, said grantor may and the right is hereby given to him to pay to the grantee the amount due him by reason of said mortgages, in which event, and upon due proof thereof to the escrow, shall said deed be returned and re-delivered unto the grantor.

And I, the said grantor, promise and agree upon default of the conditions hereinbefore named, and upon presentation of said above mentioned deed, to vacate and surrender the possession of said premises unto said grantee, who, thereupon, without suit or process, may enter and have exclusive possession thereunder.

And I, A. H. Williams, as president of Bank of Lake City, a South Carolina banking corporation, and for said bank, do hereby accept said deed in escrow and promise and agree for said bank to hold and keep said deed in accordance with the terms and condition hereof, and for the uses and purposes herein set forth, to deliver or redeliver the same upon the performance or nonperformance of the conditions hereinbefore set forth at length.

And lastly, it is hereby mutually understood and agreed, by and between the parties hereto, that all the terms, stipulations and agreements herein contained shall be binding upon the parties hereto and each and every of his or its heirs, executors, administrators, successors and assigns, as the case may be."

Attestation clause omitted.

Report of Special Referee.

To the Honorable, the Court of Common Pleas:

This is a proceeding on the equity side of the court, involving the question whether or not a certain instrument is a deed or a mortgage. The matter comes before me under an order of court appointing me special referee to take testimony and report my findings of fact and conclusions of law, which are hereinafter respectfully submitted, together with the record.

The facts are, in brief, as follows:

The plaintiff owed several debts, secured by mortgages, to various firms, banks, and individuals. It seems that, at the time of the commencement of this transaction between plaintiff and defendants, the defendant was one of a number of general creditors of plaintiff. The plaintiff was adjudged a bankrupt and effected a 20 per cent. composition, and in order to raise the funds to pay this composition he borrowed money from the defendant, the defendant, however, requiring from the plaintiff as a condition to making loan, that the plaintiff should pay him the full amount of his claim, which appears to have been a considerable sum. At that time there were already two mortgages on the land, which fact was known to the defendant and which the defendant subsequently took up, at which time the escrow agreement was entered into, and all of which, taken together, aggregated the sum of $14,196.32, as mentioned in the agreement. So plaintiff executes a fee-simple deed of conveyance in June, 1914, conveying his plantation to the defendant. This deed is placed with the Bank of Lake City, to be held in escrow until January 1, 1915, at which time it was to be delivered to the defendant by said bank if the plaintiff did not deposit with it the sum of $3,000 to the credit of defendant to be applied to certain mortgage debts of plaintiff, but if the $3,000 was deposited with said bank, as aforesaid, the said bank was to continue holding the deed until January, 1916, on or before which date, if the plaintiff herein had not paid all sums due the defendant, then the said bank was to deliver said deed to defendant, who was then to become the absolute owner in fee simple of the land so conveyed in said deed. These conditions, above given, were set out in full in the escrow agreement entered into between the plaintiff and defendant and signed by them both on June 12, 1914.

The plaintiff did not deposit the $3,000 with said bank on or before January 1, 1915, so defendant went to the bank and got his deed. Thereafter the plaintiff rented the lands so conveyed from defendant at an agreed rental value per annum. After having so rented it and having paid the rent for several years, he began this action to have the deed declared a mortgage, after having first attempted to pay the defendant the debt due him on the theory that it was a mortgage, but the defendant having clearly made it known, in unmistakable language, that he regarded himself as the absolute owner of the land so conveyed to him, the plaintiff made no further effort to make an actual tender, the defendant having waived his right to demand the tender by his conduct.

The escrow agreement recites, among other things (see last line of page 1 and the top of page 2): "Whereas, in order to save the grantee (the defendant herein) the costs and expense of the foreclosure of said mortgages in the event of default or breach of the terms thereof, said grantor (the plaintiff herein) has this day duly made, executed and delivered unto the escrow his good and sufficient fee-simple deed of conveyance for said premises, to hold said deed in escrow to and for the uses and purposes hereinafter set forth." So we have here the...