1. Mortgages (§ 32*)—Absolute Deed as Mortgage—Intention of Parties.
A deed absolute on its face may in equity be declared a mortgage, if the evidence shows that such was the intention of the parties.
[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 60; Dec. Dig. § 32.*]
2. Mortgages (§§ 36, 38*)—Absolute Deed as Mortgage—Presumption and Burden of Proof.
The presumption is that a deed absolute on its face is what it purports to be, and its character as a mortgage can be established only by evidence clear, unequivocal, and convincing.
[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 95. 109; Dec. Dig. §§ 36, 38.*]
3. Mortgages (§ 38*)—Absolute Deed as Mortgage—Sufficiency of Evidence.
Evidence, in an action to declare a deed absolute on its face to be in fact a mortgage, held sufficient to show that it was an absolute deed.
[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 108-111; Dec. Dig. § 38.*]
4. Specific Performance (§ 93*)—Sale of Real Estate — Breach by Purchaser — Time as Essence of Contract.
Where a purchaser of land, who was in possession under a contract which required him to pay taxes and a specified amount on the purchase price on a given day, time being stated to be of the essence of the contract, failed to do either, and subsequently suffered a default judgment to be taken against him by the vendor in proceedings to recover possession, under which he was ejected, he forfeited all rights under the contract and could not thereafter compel performance.
[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. §§ 245-248; Dec. Dig. § 93.*]
Appeal from Common Pleas Circuit Court of Lancaster County; S. W. G. Shipp, Judge.
Action by John Williams against R. C. McManus. Judgment for defendant, and plaintiff appeals. Affirmed.
John Williams, on September 6, 1906, conveyed the premises in controversy by a deed absolute on its face for a stated consideration of $300 to R. C. McManus, who on the same day executed a bond for title in the penal sum of $300, reciting that: "Whereas, the above bouuden R. C. McManus has this day agreed to sell to the said John Williams the following described tract of land in the county of Lancaster, said state, to wit: All that piece, parcel or lot of land situated within the incorporate limits of the town of Lancaster, containing one-fourth (1-4) acre, more or less, being in the shape of a triangle and bounded on the north by lot of R. C. McManus; east by Main street of said town of Lancaster; south by right of way of Southern Railway Company; and on the West by lot of said R. C. McManus, on condition that the said John Williams shall pay the sum of three hundred forty-eight and no 100 ($348.00) dollars, in manner following, that is to say: One hundred and seventy-four ($174.00) dollars on September 1, 1907, and one hundred and seventy-four ($174.00), dollars on September 1, 1907, and one hundred and seventy-four ($174.00) dollars on September 1, 1908: Now the condition of this obligation is such, that if the said John Williams shall pay the said purchase money so as aforesaid stipulated and shall in the meantime pay all taxes on said land, and the said R. C. McManus shall on the completion of said payments make, execute and deliver, or cause to be made, executed and delivered, a good and sufficient deed of conveyance (with warranty against himself, his heirs and assigns only) of the land above described to the said John Williams, then this obligation to be void and of none effect or else to remain in full force and virtue. And it is expressly agreed by and between the parties aforesaid that 'time is of the essence of this contract, ' and that in the event of the nonpayment of said sum of money or any part thereof, promptly at the time herein limited, that then the said It. C. McManus is absolutely discharged from any and all liability to make and execute such deed and may treat the said John Williams as tenant holding over after the termination, or contrary to the terms of his lease; or if he prefer so to do may enforce the payment of the purchase money."
The following is the report of John T. Green, Special Referee:
"In obedience to an order of this court, of date October 27, 1909, the undersigned has taken the testimony in the above-stated cause and heard the argument of counsel on the issues of law and fact involved therein. The testimony so taken by me, consisting of 18 pages, is herewith separately reported. My rulings on objections made during the taking of the testimony are to be found noted on the margin. It is admitted that on the 5th day of September, 1906, the plaintiff, John Williams, in consideration of the sum of $300 in cash paid to him executed and delivered to the defendant, R. C. McManus, the deed of conveyance, marked by me 'Exhibit C., ' for the lot therein described; that on the same day defendant and plaintiff entered into the agreement marked 'Exhibit B, ' called a 'bond for title'; and that the lot described in said bond for title is the same lot referred to in said deed of conveyance. The only issues raised by the pleadings and testimony in this case, as I take it, are as follows: (1) Was the said deed from plaintiff to defendant intended by the parties at the time of its execution to be an absolute sale and conveyance of the lot therein mentioned, as claimed by defendant; or was it intended by them as a mortgage to secure a loan of $300 by defendant to plaintiff, as claimed by the latter? (2) Even if the said deed is held to be absolute, and that it was not intended as a mortgage, still was plaintiff entitled under the terms of the said bond for title to have the said lot reconveyed to him, when he tendered to defendant on April 10, 1909, the sum of $364.98 and demanded a deed from defendant?
"After a careful review of the testimony adduced before me, my findings are as follows:
"Findings of Fact
"I find from the preponderance of the evidence adduced before me:
"(1) That on a number of occasions prior to the date of the execution of the said deed of conveyance and bond for title, plaintiff applied to defendant for a loan of money on the lot in question; but that defendant
declined to make him any loan, expressing a willingness, however, to buy the said lot, if plaintiff would sell it.
"(2) That, at the time of the execution of the deed to the defendant, McManus, one F. R. Massey held a mortgage on said lot for $200, which plaintiff was unable to pay.
"(3) That plaintiff is, and was at the time of the execution of the said deed, a colored man of more than average intelligence, that he could read and write, and that no advantage was taken of him in the execution of the said papers.
"(4) That the said deed of conveyance and the said bond for title were executed at the same time and place and before the same witnesses.
"(5) That the plaintiff remained in possession of the premises, after the execution of the said papers, until the 22d day of June, 1908, when he was ejected therefrom by the sheriff of Lancaster county under a warrant of ejectment issued to him by W. P. Caskey and B. F. Phillips, magistrates for said county, under section 2421 of the Code of Laws of South Carolina (1902).
"(6) That since the execution of the said deed of conveyance the defendant, McManus, has continuously paid the taxes on the premises in question.
"(7) That no money was paid or tendered by plaintiff to defendant under the said bond for title or otherwise up to the time of his said ejectment on June 22, 1908.
"(8) That on the 10th day of April, 1909, H. M. Dunlap, Esq., as attorney for the plaintiff, did tender to the defendant, McManus, the sum of $364.98 and demanded that he execute to plaintiff a deed of conveyance for the lot in question, claiming that the said sum so tendered was 'in payment of the mortgage held by him from John Williams, ' and that McManus refused to accept the same.
"(9) As to the most vital question of fact in the case, to wit, as to whether the said deed from plaintiff to defendant, which is absolute on its face, was really intended by the parties at the time to be a mortgage, I am forced to conclude from all the facts and circumstances of this case, as gathered from the testimony adduced before me, and from what I know of the character of the respective witnesses examined before me, that the original contract between the parties was a sale of the lot in question; that the deed of conveyance from plaintiff to defendant (Exhibit C) was a deed and not a mortgage; and that there was a contract (Exhibit B) to resell to the grantor (Williams) within a stipulated time, and upon conditions therein fully expressed.
"In the first place, no other conclusion can be drawn from the testimony in the case than that, at the time of the execution of the said deed, the said lot was not of greater value than $300, the sum paid plain-tiff by defendant. Again, in view of the fact as established by the testimony that the defendant, McManus, had time and again previously refused to loan plaintiff money on this lot, nothing appeared in the case that was calculated to induce him to change his mind as to the wisdom of becoming plaintiff's creditor. Again, the lot in question adjoined that of the defendant, McManus, and lay between the McManus lot and the Southern Railway depot—a fact that would induce McManus to pay more for it than any one else, but a fact that would not induce him to make a loan to plaintiff to the extent of the full value of the lot.
"Again, the testimony of Jas. M. Knight, who was one of the witnesses to the deed in question, strongly corroborated the positive statement of the defendant, McManus, to the effect that the deed in question was not intended as a mortgage to secure a loan, but to convey the absolute title in this lot to defendant.
"Again, that positive testimony of the witness Geo. F. Payseur, as to the...
