2 S.E. 307 (S.C. 1887), Navassa Guano Co. v. Richardson

Citation:2 S.E. 307, 26 S.C. 401
Opinion Judge:McIVER, J.
Case Date:April 19, 1887
Court:Supreme Court of South Carolina

Page 307

2 S.E. 307 (S.C. 1887)

26 S.C. 401




Supreme Court of South Carolina

April 19, 1887

Appeal from circuit court, Sumter county.

Page 308


This was an action to recover possession of certain real estate in the possession of the defendant. Both parties claim under D. M. Richardson, the plaintiff, under a sheriff's title, through a judgment against said D. M. Richardson, entered twenty-third February, 1883, under which the two tracts of land in controversy were levied on and sold by the sheriff some time in the year 1886, and duly conveyed to the plaintiff; and the defendant through two mortgages, one executed the seventeenth of February, 1880, covering both of said tracts of land, and the other executed the second of January, 1883, covering only the smaller tract, together with certain personal property therein mentioned, together with a release of the equity of redemption, as it is called, from the said D. M. Richardson to the defendant, executed on the third of August, 1885. This release, after describing specifically these mortgages as given by said D. M. Richardson to the defendant to secure the payment of the two bonds therein mentioned, proceeds as follows: "And whereas, the said Samuel C. C. Richardson now holds the said two bonds and mortgages unpaid and unsatisfied, now, in consideration of the said Samuel C. C. Richardson marking paid and satisfied my two bonds aforesaid, and in further consideration of the sum of three dollars to me paid by the said Samuel C. C. Richardson, the receipt whereof is hereby acknowledged, I, the said Davison M. Richardson, do hereby forever release and relinquish unto the said Samuel C. C. Richardson, his heirs and assigns, all my right, title, and interest, and all my equity of redemption, in and to the said two mortgaged tracts of land or premises hereinbefore mentioned and described." It is conceded that, in accordance with the terms of this paper, the said bonds were marked "Satisfied," and were delivered to said Davison M. Richardson; and the defendant in his answer alleges "that the said mortgages, as unsatisfied and still of force, were retained by the defendant as muniments of his title to said lands;" but this allegation was not admitted by plaintiff, and no evidence tending to prove it was adduced, except the circumstance that the mortgages were offered in evidence by the defendant. From this statement it will be seen that while the judgment under which plaintiff claims is junior in date to both of the mortgages, it is senior to the paper styled the "Release of the Equity of Redemption."

Upon this state of facts the circuit judge charged the jury that the plaintiff had the better title, and was therefore entitled to recover. Defendant appeals upon grounds which will sufficiently appear in the further discussion of the case.

It is quite manifest that the controlling inquiry in the case is whether the title set up by the defendant can, by the conjoint operation of the mortgages and the release of the equity of redemption, relate back to the date of the mortgages, or whether it must be confined to the date of the release; for, if it can relate back to the date of the mortgages, then it is prior and superior to that of the plaintiff; otherwise it is junior and inferior. It certainly is as well settled as anything can be, both by statute and adjudications of the courts, that since the act of 1791 (5 St. 169) a mortgage is not a conveyance of any estate, except "where the mortgagor shall be out of possession," but

Page 309

is simply a lien to secure the payment of a debt. Simons v. Bryce, 10 S.C. 354; Warren v. Raymond, 12 S.C. 9. This is conceded by appellant, but he contends that, by virtue of the provisions of the act of 1797, (5 St. 311,) a mortgage, followed by a release of the equity of redemption, is restored to its original character at common law, and must be regarded as a conveyance of the legal estate to the mortgagee, which is perfected by a release of the equity of redemption; and in such a case the title of the mortgagee takes date from the mortgage, and not from the release. This view rests upon the assumption that, where a mortgage is followed by a release, the common law applies, just as if the act of 1791 had never been passed. This is only another mode of saying that the act of 1797 operates as a repeal of the act of 1791 in such a case.

Now, as it is quite certain that there is no repealing clause in the act of 1797, and as repeals by implication are not favored, the burden is on the appellant to show clearly such an implication. The rule is that "a statute can be repealed only by an express provision of a subsequent law, or by necessary implication. To repeal a statute by implication, there must be such a positive repugnancy between the provisions of the new law and the old that they cannot stand together or be consistently reconciled." Potter, Dwar. St. 154, note 4, and cases there cited. Hence, in order to sustain appellant's position, it is necessary that it should be made to appear that there is such a positive repugnancy between the provisions of the act of 1791 and the act of 1797 as that they cannot stand together or be reconciled. If, therefore, any view of the provisions of the latter statute can be suggested by which the two acts may be reconciled, then the implication of repeal does not arise. That such a view can be and has been taken may be seen by reference to the separate opinion of Judge WARDLAW in the case of Mitchell v. Bogan, 11 Rich. 704, where he goes into a elaborate discussion of these two acts, and the view there suggested by that distinguished jurist has been adopted in the case of Simons v. Bryce, 10 S.C. 372, 373. According to that view, the effect of the act of 1797 was simply to give to a release of the equity of redemption the effect of a conveyance. This view, if it needs any additional support, is strengthened by a careful consideration of the terms of the two acts of 1791 and 1797.


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