Frady v. Ivester

• Decision Date: 14 October 1924
• Docket Number: (No. 11576.)
• Parties: FRADY et al. v. IVESTER.
• Court: South Carolina Supreme Court

125 S.E. 134

FRADY et al.

v.IVESTER.

(No. 11576.)

Supreme Court of South Carolina.

Oct. 14, 1924.

Rehearing Denied Nov. 14, 1924.

Fraser, J., dissenting.

Appeal from Common Pleas Circuit Court of Oconee County; John S. Wilson, Judge.

Action by A. J. Frady and others against Mrs. W. C. Ivester. Judgment for plaintiffs, and defendant appeals. Reversed.

E. L. Herndon, of Walhalla, for appellant.

J. R. Earle, of Walhalla, for respondents.

MARION, J. Action for the recovery of two tracts of land; one containing 100 acres, and the other 50 acres. Broadly, the case made is this:

The common source of title is Elizabeth E. Tate. The plaintiffs claim the 100-acre tract as the heirs at law of one Amanda Frady, deceased, who at the death of Elizabeth E. Tate is alleged to have taken the whole of the 100 acres as an heir at law of said Elizabeth E. Tate, deceased. Two of the plaintiffs claim the 50-acre tract by virtue of a deed of conveyance from Elizabeth E. Tate.

The defendant in possession bases her claim to title upon the following facts:

In 1S97 Elizabeth E. Tate had legal title to and was in possession of the 100-acre tract Prior thereto, in July, 1896, she had conveyed to her two granddaughters, "M. V. Hughes and E. D. Frady, " the 50-acre tract. On February 26, 1897, these three parties, "E. E. Tate, M. V. Hughes, and E. D. Frady, " executed and delivered to the defendant a warranty deed of conveyance, covering both of the tracts of land, which contained the following condition:

"It is understood by and between the parties hereto that this deed of conveyance shall be considered and regarded as a mortgage on said real estate until the 1st day of November, 1897, but if the said Elizabeth E. Tate, Mary V. Hughes, and E. D. Frady shall fail to pay to the said Miss W. C. Von Lehe two mortgages which she now holds against the said real estate, then this deed of conveyance shall become absolute in fee forever, to the said Miss W. C. Von Lehe."

One of the grantors who executed the foregoing deed, viz. E. D. Frady (now Delilah E. Marlin), was at the time of the execution and delivery thereof a minor, 17 or 18 years of age. The makers of this instrument, then in possession of the lands, failed to pay the extraneous mortgages therein referred to by November 1, 1897. Early in November, 1897, the defendant entered into possession of the land, and continued in undisturbed possession of the premises until March 7, 1919, when this action was commenced.

The case was first tried before a referee, whose findings and conclusions in favor of the defendant were confirmed by the circuit judge. On appeal to this court (118 S. C. 195, 110 S. E. 135) it was held that the instrument of February 26, 1897, under which the defendant went into possession, was a mortgage; that by virtue of the relationship of the parties thereby created certain conclusions of law of the lower court upon the facts found were erroneous; and that a new trial should be had. Upon remand for a new trial the cause was tried the second time before the presiding judge of the court of common pleas and a jury. From judgment on verdict in favor of the plaintiffs for the recovery of both tracts of land, and for "the sum of $1,100 as rents, " the defendant now appeals.

Before proceeding to a consideration of the questions raised, it is necessary to determine the extent to which the disposition of this appeal is controlled by the decision on the former appeal. Since the result of that appeal was the award of a new trial in a law case, it is clear that there was no such judicial determination of the facts as would bind the court upon a subsequent appeal. Where on a second appeal from a trial de novo new questions arise, or the record presents a different state of facts, it is equally clear that the principles of law announced on the first appeal are controlling only in so far as they are fairly applicable to the new questions, and to the different state of facts presented by the record on the second appeal. 4 C J. 1101; 2 R. C. L. 224, § 187; Jennings v. Parr, 54 S. C. 109, 32 S. E. 73; Murray v. Aiken Min., etc., Co., 39 S. C. 457, 18 S. E. 5; State v. Tucker, 56 S. C. 516, 35 S. E. 215.

Analysis of the decision on the first appeal will disclose that the result reached was predicated upon the view that, In the state of facts presented by that record, the defendant's possession of the lands in dispute did not constitute such adverse holding as would start the running of the statute of limitations, or of the 20-year period required to presume a grant. Having held that the instrument of writing under which the defendant took possession was a mortgage, and proceeding upon the theory that a mortgagee in possession, even by express verbal agreement of the mortgagor that he shall take the land for the debt, is a trustee for the mortgagor, and as such cannot claim the benefit of adverse possession until he shall have thrown off the trust by relinquishing possession or giving notice to the mortgagor of his adverse holding, the court announced the following conclusion:

"The only consideration stated in the findings of fact by the circuit court is that, the mortgagors 'being unable to make payments, the land was surrendered to the defendant in payment of the mortgage debts.' * * * The defendant's entry into possession was permissive, and, as she had a duty to perform, she could not hold adversely to the rights of the mortgagors until she either surrendered the possession or gave notice of an adverse possession. Wilson v. Weathersby, 1 N. & McC. 374; McCutchen v. McOutchen, 77 S. C. 129, 57 S. E. 678; 12 L. R. A. (N. S.) 1140; Pinckney v. Knowles, 112 S. C. 7, 99 S. E. 354; Milhouse v. Patrick, 6 Rich, 350."

Unless, therefore, the state of facts presented by this record is so essentially identical with that considered on the first appeal as to justify the application of the same principles of law, and to require the same conclusion upon the mixed question of law and fact as to the character of the defendant's holding of the lands in her possession, it is clear that the decision of this appeal is not ruled by the conclusions announced and the result reached on the former appeal. The case, as an action to recover real estate, turns upon whether the defendant's tenure of the lands here in question was adverse or permissive. Careful review of the evidential facts here presented leaves no room for doubt that as to this pivotal question a conclusion different from that reached on the former appeal is imperatively required.

As indicated above, the court's view on the first appeal that defendant's holding was permissive and not adverse was expressly predicated upon the fact, or assumption of fact, that the defendant entered by and with the consent of the mortgagors under an express verbal agreement that "the land was surrendered to the defendant in payment of the mortgage debts." In this ease the evidence is open to no other reasonable inference than that the defendant, not only did not enter into possession with the consent or by permission of the mortgagors then in possession, but that she entered against the will of the mortgagors, to whom she extended express notice, prior to her taking possession, that they would have to get off the land and that she claimed it in her own right under the conditional deed of February 26, 1897. The defendant testified that before taking possession of the land she told the mortgagors that if they could not pay "they would have to give it up and move off"; that she "made them give it up and made them move off"; that she entered into possession about November 1, 1897; that since then she had returned the land and paid taxes on it as her own; that she had rented the land to others, used it as her own, and kept no accounts, because the land was hers; and, in substance, that she had been in open, notorious, continuous possession of the lands, under claim of title, exclusive of any other right, since she took possession in November, 1897. That evidence of defendant was not only not controverted by any testimony offered by the plaintiffs, but was expressly corroborated by them. The plaintiff Mary V. Hughes, one of the makers of the instrument under which defendant claimed, testified:

"I know she [the defendant] took possession of the land and told us to get out and get another place. She claimed the land."

Mrs. D. E. Marlin, one of the plaintiffs, who as "E. D. Frady" signed the conditional deed or mortgage, under which defendant claimed, testified, in substance, that she had never consented to the defendant taking possession; that at the time defendant "claimed possession" she was living on the place; that defendant told her mother "and them" that she would not "take the money, " that they had "come too late, " that she (defendant) claimed the place, and that she (the defendant) notified those in possession "to move off." The testimony of A. J. Frady, a plaintiff who was the husband of Amanda Frady and the son-in-law of Mrs Elizabeth E. Tate; of E. H. Miller, the husband of one of the plaintiffs; of Ben Rutledge and J. W. Cox, witnesses for the plantiffs —was of the same purport and to the same effect. If the foregoing undisputed facts do not conclusively rebut any inference, arising merely from the relation of mortgagor and mortgagee, that the defendant entered permissively and do not establish "notice of an adverse possession" from the very inception of defendant's holding, it would be difficult to conceive of facts, short of a taking and holding vi et armis, which would rebut such inference and establish such notice.

The legal relationship of mortgagor and mortgagee, as is clearly recognized in the opinion on the first appeal, does not prevent a mortgagee in possession from holding adversely to the mortgagor's legal title, nor preclude him from perfecting legal title in himself by adverse possession. At common law, and prior to the enactment of the...