Petty v. Petty

• Decision Date: 24 March 1898
• Citation: 29 S.E. 406,52 S.C. 54
• Parties: PETTY v. PETTY et al.
• Court: South Carolina Supreme Court

29 S.E. 406

52 S.C. 54

PETTY v. PETTY et al.

Supreme Court of South Carolina

March 24, 1898

Appeal from common pleas circuit court of Spartanburg county; I. D Witherspoon, Judge.

Action by J. C. Petty against C. Q. Petty and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Bomar & Simpson and Thomason & Bomar, for appellant.

Nicholls & Jones, for respondents.

McIVER C.J.

The object of this action was to have certain deeds, absolute on their face, executed by the plaintiff to the defendants declared mortgages, and to allow the plaintiff to redeem upon payment of what he claimed to be the mortgage debt. For this purpose the plaintiff relies entirely upon an alleged parol agreement between himself and defendants to that effect. The circuit judge, having reached the conclusion that the testimony was insufficient to establish such parol agreement rendered judgment dismissing the complaint.

From this judgment plaintiff appeals upon the several grounds set out in the record, which need not be set out here, as they all impute errors to the circuit judge in his findings of fact as to various minor issues leading up to his conclusions upon the main and controlling issue, which is likewise claimed to be erroneous.

Obviously the main and controlling issue in the case is whether the testimony is sufficient to establish the parol agreement relied upon by plaintiff, and upon which his whole case depends; and it matters little whether there was error in the findings of the circuit judge upon the several minor issues of fact which the circuit judge discussed in his decree, for, unless the testimony was sufficient to establish the parol agreement relied on, then there was no error in the final conclusion reached or in the judgment rendered. We do not, therefore, deem it necessary to consider seriatim these minor issues, but shall continue our attention to what we regard the controlling question in the case,--was the testimony sufficient to establish the parol agreement relied on?

As is said in 3 Pom. Eq. Jur. § 1196: "Any conveyance of land, absolute on its face, without anything in its terms to indicate that it is otherwise than an absolute conveyance, and without any accompanying written defeasance, contract of repurchase, or other agreement, may, in equity, by means of extrinsic and parol evidence, be shown to be in reality a mortgage as between the original parties," etc. The principle upon which this doctrine is founded is that it would be a virtual fraud for the grantee to insist upon the deed as an absolute conveyance, when it was understood at the time to be intended merely as a security and in reality as a mortgage. But, as is further said by the same distinguished authority the same section: "The presumption, of course, arises that the instrument is what it purports on its face to be,--an absolute conveyance of the land. To overcome this presumption, and to establish its character as a mortgage, the cases all agree that the evidence must be clear, unequivocal, and convincing, for otherwise the natural presumption will prevail." See, also, our own case of Arnold v. Mattison, 3 Rich. Eq. 153, to the same effect. Indeed, the plaintiff's counsel very properly concedes this to be the rule, which seems to be everywhere recognized, and is based upon the soundest reason; for, before a court of equity can be expected to convert a solemn written instrument under seal into something very different from what it purports on its face to be, there should be very strong evidence to show that such was the intention of the parties to such instrument. To use the language of Johnston, Ch., in Arnold v. Mattison, supra, "The evidence must be very clear and convincing."

In the light of this well-settled, and apparently universally recognized, rule, we propose, briefly, to consider the testimony in this case; for it is not usual, and would serve no good purpose, to go into any elaborate discussion of a question of fact. It appears that some time in December 1889, the plaintiff, being in embarrassed circumstances, with his land advertised for sale at the next succeeding sale day, applied to the defendants, one of whom was his brother and the other the son-in-law of such brother, for help. It seems that the plaintiff desired to raise the money necessary to relieve his property from the liens resting upon it, for which purposes he represented that it would require about the sum of $1,000, by giving mortgages upon his lands. It seems, however, that while the defendant Jenkins may, at first, have been inclined to advance the money on a mortgage, yet he always qualified his statement to that effect by the condition that his co-defendant, Petty, should join with him in doing so. Even in the much-disputed letter marked "Exhibit O," which will be more particularly hereinafter referred to, he practically took that position. But his co-defendant, Petty, persistently refused to advance the money on a mortgage. Matters...