Gainey v. Anderson
| Decision Date | 13 September 1910 |
| Citation | 68 S.E. 888,87 S.C. 47 |
| Parties | GAINEY v. ANDERSON et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Darlington County; Thos S. Sease, Judge.
Action by Rebecca E. Gainey against Sarah M. Anderson and others. Judgment for plaintiff, and defendants appeal. Affirmed.
Burke Rivers & Erckmann, for appellants. McLauchlin & Tatum, for respondent.
In 1881 J. W. Gainey and his wife, the plaintiff herein, gave McKinnon and McNair their joint and several bond, conditioned to pay a debt which Gainey had contracted. At the same time Gainey gave them a mortgage of a tract of land, owned by him to secure the debt, and his wife duly renounced her dower thereon. This bond and mortgage were assigned to Carrigan and Silcox. In 1894, the debt being still unpaid, Gainey and wife, by their joint deed, containing the usual covenant of general warranty, conveyed the land to Carrigan and Silcox in satisfaction of the mortgage, though the consideration expressed in the deed is $450--the amount then due on the mortgage. On this deed Mrs. Gainey did not renounce dower. In 1895 Carrigan conveyed his interest to Silcox, from whom the defendants derive title by descent. Gainey died, and in January, 1908, this action was brought by Mrs. Gainey to recover her dower in the land. The decree below was for the plaintiff:
The appellants contend that because the deed was taken in satisfaction of the mortgage--somewhat in the nature of a voluntary foreclosure, by act of the parties--and as dower had been renounced on the mortgage, it should be made to inure to the benefit of the grantees in the deed and cure the failure of Mrs. Gainey to renounce dower on the deed, just as if the mortgage had been foreclosed in court. The argument is that the parties ought to be allowed to do for themselves voluntarily, and without expense, and with the same result what the court would have compelled at great expense. When the wife of a mortgagor renounces her dower on his mortgage by her own act, she places herself in privity of estate with him; and, when the mortgage is foreclosed, the court acts upon and conveys the legal title by virtue of the complete lien of the mortgage--the contract made by the parties-- and the purchaser at a sale under judgment of foreclosure of such a mortgage takes the legal title and the dower. Miller v. Bank, 49 S.C. 427, 27 S.E. 514, 61 Am. St. Rep. 821. But, when the parties deal with the situation themselves by a new contract, the court can give to their contract no greater force or effect than its terms import under the rules of law. A release of dower on an instrument--whether a lease, mortgage, or deed of conveyance--attends upon and is incident to the principal conveyance, and endures with it, and no longer. If the principal conveyance never takes effect, or if it is satisfied or extinguished by act of the parties or by operation of law, the dower reverts, eo instanti, to the wife. Rickard v. Talbird, Rice, Eq. 158. The general rule is that when two estates or interests in the same property unite in the same person, in the same capacity, the lesser is merged in the greater, unless a contrary intention appears; for the intention, express or presumed, of the person whose interests are so affected, determines whether merger takes place or not. In McCreary v. Coggeshall, 74 S.C. 42-55, 53 S.E. 978, 982, 7 L. R. A. (N. S.) 433, Mr. Justice Woods, speaking for the court, after an able and elaborate review of the authorities in this state and in other jurisdictions, reaches the conclusion that " merger will not take place, if opposed to the intention of the parties affirmatively proved or to be implied from the fact that merger would be opposed to the interest of the person in whom the different estates or interests became united." Under this rule, the question arises whether the preponderance of the evidence showed an intention to keep the mortgage open, or, in the absence of evidence of such intention, whether it will be presumed from the circumstances; it being to the interest of the mortgagees to preserve the lien of their mortgage to protect the legal title against the plaintiff's claim of dower. Upon this question, the burden was upon appellants; for, when the circumstances under which merger ordinarily takes place are shown, the burden rests upon him who alleges that there was no merger to prove a contrary intention, or to prove facts and circumstances from which such an intention will be presumed.
The only direct evidence upon that point is that of Mrs. Gainey, whose testimony is uncontradicted. She testified that the deed was executed in satisfaction of the mortgage, and that the amount then due on the mortgage was $450. The fact that the consideration expressed in the deed is $450, the amount then due on the mortgage, tends to corroborate her testimony upon this point. It does not even appear that the bond and mortgage were retained by the mortgagees. They were put in evidence, but the record fails to show by whom they were introduced, or from whose possession they came. The fact that Mrs. Gainey was asked to sign the deed with her husband tends to support the theory of merger, because it tends to show that the mortgagees thought that her signature to the deed was sufficient to convey all her interest in the land, including her inchoate right of dower. If they so thought, there would have been no reason to want to keep the mortgage alive. If she had regularly renounced her dower on the deed, no reason could have been assigned for an intention on the part of the mortgagees to keep the mortgage open. Moreover, it does not appear that Carrigan's interest in the land was conveyed subject to the mortgage, or that the conveyance was accompanied by an assignment of his interest in the mortgage, either of which would have been some evidence of intention to keep the mortgage alive, and the absence of which, of course, tends to prove the contrary. As there is no direct or circumstantial evidence of such intention, the only thing upon which a finding of its existence can be predicated is the presumption which arises from the fact that it would have been to the interest of the mortgagees, which is overthrown by the facts and circumstances above mentioned. There is another reason why the mortgage cannot avail appellants. More than 20 years had elapsed after the date of the mortgage before this action was brought. The mortgage was therefore presumed paid, and it was barred by the statute of limitations. Section 2449, Civ. Code 1902; Jennings v. Peay, 51 S.C. 327, 28 S.E. 949.
The next contention of the appellants is that plaintiff is estopped by the covenant of general warranty contained in the deed, for the execution of which there was a valuable consideration moving to her, to wit, the satisfaction of the bond which she had signed with her husband. As the deed was executed prior to the Constitution of 1895, the question must be determined by the powers conferred on married women by the Constitution of 1868, and the laws enacted thereunder; and no opinion is expressed as to the effect of such a covenant by a...
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