Thigpen v. Thigpen, No. 16382

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: OXNER; FISHBURNE, STUKES and TAYLOR, JJ., and E. H. HENDERSON; BAKER
• Citation: 217 S.C. 322,60 S.E.2d 621
• Parties: THIGPEN v. THIGPEN.
• Decision Date: 13 July 1950
• Docket Number: No. 16382

Page 621

60 S.E.2d 621 217 S.C. 322 THIGPEN
v.
THIGPEN. No. 16382. Supreme Court of South Carolina. July 13, 1950.

Page 622

[217 S.C. 323] John G. Dinkins, Manning, for appellant.

[217 S.C. 324] Fred Lesesne, James Hugh McFaddin, Manning, for respondent.

OXNER, Justice.

This action was instituted in February, 1948, for the purpose of having a deed to a tract of land in Clarendon County containing approximately 100 acres, absolute in form, executed by respondent to appellant, his brother, on May 4, 1927, construed as a mortgage. Respondent alleged in his complaint that he was induced to sign this instrument by appellant's fraudulent representation that it was a mortgage. [217 S.C. 325] He also alleged that he received no consideration for said conveyance and that it was not witnessed as required by law. Appellant denied the material allegations of the complaint, set up title by adverse possession, and further allegedin his answer that respondent had not within ten years before the commencement of the action been seized or possessed of the premises and was, therefore, barred by the statute from bringing this action.

The case was tried at the March, 1949, term of the Court of Common Pleas for Clarendon County. Under issues framed by the Court, the jury found (1) that the instrument was not executed according to law, (2) that it was without consideration, (3) that it was intended as a mortgage, (4) that respondent was induced to sign same by fraudulent representations on the part of appellant, and (5) that appellant had not acquired title to said premises by adverse possession. A motion for a new trial made by appellant was overruled. Thereafter a decree was filed approving and adopting all findings of fact made by the jury and directing that an accounting be had between the parties. This appeal followed.

The first question for determination is whether the Court below erred in refusing a motion for a directed verdict made by appellant at the conclusion of the testimony on the ground that the proof was insufficient to support a finding that the parties intended that the deed should operate as a mortgage.

Appellant owned a tract of land containing approximately 122 acres adjacent to the 100-acre tract owned by respondent. Both tracts of land were originally parts of a 315 acre tract owned by their father. The two brothers were farmers of limited education. Respondent said that he never went beyond the second grade in school and was scarcely able to either read or write. On June 18, 1925, respondent mortgaged his tract of land to the Federal Land Bank for $1400 and on the same day appellant mortgaged his tract of land for $2000 to the same institution.

[217 S.C. 326] In April, 1927, respondent became in urgent need of funds for the purpose of discharging an indebtedness amounting to approximately $500 incurred to the South Carolina Agricultural Loan Association in 1926. He was unable to borrow the money and approached his brother for aid. Appellant was not in a position to render financial assistance and the two brothers then went to see one D. N. Baker, who lived in that community, and asked if he would make a loan secured by a second mortgage on respondent's tract of land. Baker declined to do so but indicated if the parties make a loan to respondent if the parties would secure same by a second mortgage on both tracts of land. According to respondent, appellant agreed to this arrangement. A few days later, on May 4, 1927, the instrument in controversy, an absolute

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conveyance by respondent to appellant of the 100-acre tract, was executed. The only consideration stated in the deed is $5. No reference was made therein to the mortgage held by the Federal Land Bank. On the same day appellant executed to Baker a note for $750, secured by a mortgage covering both tracts of land. Both the deed and mortgage were recorded on the following day in the office of the Clerk of Court. The deed was executed and the dower thereon renounced at the residence of appellant. Respondent and his wife testified that both appellant and the notary public who probated the affidavit on the deed and took the renunciation of dower represented to them that this instrument was a second mortgage on respondent's tract of land. Respondent said that a sale of his property was never discussed; that no mention was ever made of a deed; that no money was ever paid to him; and that he executed the instrument solely for the purpose of borrowing funds to discharge his indebtedness to the Agricultural Loan Association.

Appellant testified that his brother came to him stating that he was in serious trouble on account of disposing of property mortgaged to the Agricultural Loan Association and that it was necessary for him to pay within a few days [217 S.C. 327] a fine imposed upon him in the Court of General Sessions for Clarendon County; and that he thereupon took his brother to see Baker who declined to make a loan secured by a second mortgage on the 100 acre tract. Appellant's version of what then transpired is as follows: 'We still didn't know what to do and he (respondent) asked me about putting up both tracts if he would deed me his, he said it was the worth of it anyway. The Federal Land Bank mortgage and this trouble he was in, was the value of the place, and he didn't have a chance and he would deed me the place if I would put up both the places and borrow the money, and that is what we did.' Appellant further testified that he did not wish to buy the property as he could have brought similar property in that community much cheaper and that his sole motive was to assist his brother. He said that approximately $500 of the proceeds of the loan was paid to the Clerk of Court of Clarendon County to satisfy his brother's indebtedness to the Agricultural Loan Association and the balance of approximately $250 was paid to his brother in cash. He stated that there was also paid to respondent the sum of $5 named as the consideration in the deed. (As previously stated, respondent denied that any money was paid to him in the transaction.)

After executing the above deed in 1927, respondent remained on the premises for three years. During that time he said that he continued to operate the farm as had been previously done, without any demand or request for the payment of rent; and that he paid to appellant from the income on the farm the sum of $280 to be applied on the second mortgage which he thought appellant held. Appellant denied receiving the $280 payment and said that during the three-year period respondent operated the farm as his sharecropper. The property was returned for taxation in 1927, 1928 and 1929 in the name of...