Hamilton v. Hamer
| Decision Date | 24 September 1914 |
| Docket Number | 8938. |
| Citation | 82 S.E. 997,99 S.C. 31 |
| Parties | HAMILTON v. HAMER ET AL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Dillon County; S.W. G Shipp, Judge.
Action by William A. Hamilton against W. M. Hamer and another. From a decree in favor of defendants, plaintiff appeals. Reversed.
The master's report and the court's decree were as follows:
Report of Master.
It having been referred to J. D. McLucas, master, to take testimony and to report his conclusions of facts and law in the case above stated, he respectfully submits the following report:
This action was commenced by the plaintiff against the defendant W. M. Hamer, to compel the reconveyance, by said defendant to the plaintiff, of 87 acres of land, in said county, known as the Charity Hamilton lands, which land was deeded on January 3, 1894, by the plaintiff to said defendant, as is alleged in his complaint, as security for a debt of $1,000, which plaintiff owed said defendant, and further alleges that at the same time a bond for title for the reconveyance to him by defendant was executed and delivered to him.
The master finds that the deed was so executed on the day alleged, in usual form of conveyances of real estate, which is in evidence, marked "Exhibit B." That the paper designated on its face "Bond for Titles" was executed by said defendants, and delivered to the plaintiff at the same time, said paper being in evidence, marked "Exhibit D."
In his answer defendant W. M. Hamer denies that said deed was accepted by him as a security for a debt; alleges that it the land, is owned by him in fee, "subject to the contract of sale mentioned in paragraph III of the answer." (Which is same above referred to as "Exhibit D.")
He admits the tender of $1,000 for the reconveyance of the lands in dispute. "Alleges that he was ready and willing to perform his part of the said agreement during the continuance of said option, but that the plaintiff not only failed and refused to comply with the condition thereof on his part, but alleged his inability to do so, and expressly waived rescinded, and surrendered any claim or right he may have had to a conveyance of said premises to him."
In the view the master takes of the case the foregoing are the material allegations necessary to be noted or referred to in his report:
The "Bond for Titles" (Exhibit D), written and signed by the defendant W. M. Hamer, shows that the $1,000, consideration named in the deed made by plaintiff to defendant, was "for purchase money for E. D. Hamilton's interest in said land balance to cover mortgage held against W. A. Hamilton by J. W. Dillon & Son."
The purchase money for deed from E. D. Hamilton to plaintiff was $770, and was paid by defendant. The balance of the $1,000 was paid by Hamer to Dillon & Son for a mortgage of the plaintiff to them, which was assigned to W. M. Hamer, and is in evidence, marked "Exhibit A."
As part of the agreement of sale and bond for title, plaintiff was to pay Hamer $110 annually for "rent until said place (the 87 acres) is paid for in full, or the bond shall become null and void." Judging from the testimony of each (and the master gives each credit for honesty and truthfulness), the minds of the parties never met as to the real contract between them, but each is bound by the deed and bond for title. The testimony of each sustains his view of the transaction, and it is probable that each one is correct as he understood it.
In his contention the plaintiff is supported by the following facts as testified by the several witnesses named: The plaintiff says that the $110 was for interest and taxes. The defendant W. M. Hamer says (testimony, page 37), "I told him he could have the land for $110, which would just cover taxes and 10 per cent. interest on the money." On page 38 he says, "Did not intend to sell as long as it [the land] paid interest on the money." This sum ($110) was agreed on at the beginning, and maintained for 12 years, notwithstanding the great fluctuations in the value of rents of lands and cotton and increased rate of taxation. The plaintiff made considerable improvements on the land by building houses, barns, clearing land and ditching, all of which naturally increased its rental value. The value of the land at the time of the negotiations and execution of the papers should be considered.
Besides the $770 paid for the E. D. Hamilton tract of the 87 acres, and the necessary cost of preparing the papers and recording, which could not have been very much, the only other money paid by Hamer for Hamilton was to J. W. Dillon & Son for the mortgage (Exhibit A). A calculation on the mortgage shows that $166.32 was due thereon January 1, 1894. Defendant Hamer in his testimony (page 37) says: The $193 was all the consideration the plaintiff received for his 20 acres of land, which most of the witnesses testify was then worth from $400 to $600. In his testimony (page 2) plaintiff says: "I was offered $600 and $650 by two different parties, Tom Ammons and Ira Wallace." He says these offers were made just before or right after the transaction with W. M. Hamer.
In his testimony (page 25) Ira L. Wallace says it was about 1892 or 1893 he offered the plaintiff $600 for the 20-acre tract of land. Wallace says (testimony page 24), "It [the 87 acres] was worth from $1,500 to $2,000." He puts Hamilton's improvements at $500. W. M. Proctor puts the same value on it, in 1894, and says the 20-acre tract was the more valuable of the two, per acre, and values it at from $25 to $30 per acre. He sold 74 acres of adjoining lands for $2,400. He values the improvements of Hamilton at from $350 to $400. S. M. Britt puts the value of the 87 acres at $20 or $25 per acre, in 1894, $35 in 1899, and $50 now. H. E. Proctor puts same value on it. T. A. Dillon, a witness who has long experience, conducting farming and mercantile business in that section, values the land at $20 per acre in 1894--$1,740. The defendant and R. P. Hamer, his father, think that $1,000 was full value at that time.
From the testimony the master finds that at the time the deed was made by plaintiff to defendant W. M. Hamer, January 3, 1894, the land was worth at least $20 per acre, or $1,740, and that it was considerably increased in value within a few years by the improvements made by the plaintiff and higher prices of cotton and lands. The master merely mentions these facts to throw some light upon the transaction of the parties at the time of the transactions.
Doubtless the defendant Hamer thought and intended the "bond for titles" as merely a conditional sale, an option as it were, limited within five years.
It is equally clear that the plaintiff regarded it as giving him an equity of redemption. When the five-year limit expired he asked for further time, which Hamer says he granted; further says (Testimony, page 38), "I told him I would not object to giving him five years."
In construing the paper (Bond for Titles), the master finds that it has the same effect, in connection with plaintiff's deed to defendant, as if written in it, and the same as the defeasance clause in a mortgage would have. When the defendant paid the $770 to E. D. Hamilton for the 67 acres of land, deed for which was made to plaintiff, and paid plaintiff's mortgage to Dillon & Son, taking assignment thereof to himself, ipso facto, plaintiff's obligation or indebtedness was shifted to the defendant, and he recognizes that in the "Bond for Titles," which says, "in case Wm. A. Hamilton pays to me $1,000.00, without hurt or damage, within five years, I bind myself, executors and administrators, to make to him a deed for 87 acres of land, more or less, known as the Charity Hamilton lands." Under the discussions of our Supreme Court, and all authorities on equity jurisprudence, the several acts would fix the character of the deed from plaintiff to defendant, making it a mortgage. In this view of the case, under the deed the plaintiff, W. A. Hamilton, had an equity of redemption, and the only way it could be destroyed would be by foreclosure or by a sale thereof to defendant Hamer for valuable consideration.
In his Equity Jurisprudence, Pomeroy gives as the general criterion by which the distinction between a deed and a mortgage is made in the following language: * * * "The existence of a debt or liability between the parties, either existing prior to the contract, or * * * arising from a loan made at the time of the contract, or for any other cause, and this debt is still left subsisting * * * so that the payment stipulated for in the agreement to reconvey is in reality the payment of this existing debt, then the whole transaction amounts to a mortgage, whatever language the parties may have used, and whatever stipulations they may have inserted in the instrument," etc.
The doctrine that "once a mortgage always a mortgage" is held by all authorities, and has been sustained by all the courts of all the states, including our own. In section 1193, Pomeroy's Equity, the following language is laid down:
"The debtor or mortgagor cannot, in the inception of the instrument, as a part of, or collateral to its execution, in any manner deprive himself of his equitable right to come in, after a default in paying the money at the stipulated time, and to pay the debt and interest, and thereby redeem the land from the lien and incumbrance of the mortgage; the equitable right of redemption, after a default is preserved, remains in full force, and will be protected and enforced by a court of equity, no...
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