Opinion
12497
September 17, 1928.
Before GRIMBALL, J., Lexington, Spring term, 1927. Affirmed.
Action by M.D. Young against J.A. Krell to have a deed absolute on its face declared a mortgage. From the decree, plaintiff appeals.
The decree of the trial Court is as follows:
This cause came on to be heard before me at the spring term of the Court of Common Pleas for Lexington County upon testimony taken before H.L. Harmon, Special Referee, to whom was referred by consent of counsel the matter of taking testimony upon all the issues raised by the pleadings, to report his conclusions of fact to this Court with all convenient speed. Counsel for plaintiff and defendant consented to have the Special Referee simply take the testimony and report same to this Court, without his findings of fact therefrom.
It appears that the parties are properly before the Court, the defendant having been duly served with the summons and complaint, and the defendant having duly answered the complaint and served same on plaintiff's counsel, as shown by the acceptance of service indorsed on the back thereof, and the case having been duly and properly docketed on Calendar 2 of the Court of Common Pleas. For an intelligent understanding of the issues raised by the pleadings in this case, it is necessary to quote from the complaint and answer so much of the essential parts thereof as relate to the question involved.
The plaintiff alleges inter alia:
"(1) That heretofore, on or about March 30, 1923, certain lots of land, the property of the plaintiff, were sold under a decree in foreclosure by the Clerk of the Court at Lexington, S.C. and the same were bought by and conveyed to J.A. Krell, the defendant herein, for and in consideration of the sum of four hundred and twenty-five ($425.00) dollars."
"(4) The purchase of the aforesaid tract of land, as above set forth, by J.A. Krell, defendant herein, was made under the following circumstances and agreement with the plaintiff herein, to wit: The said J.A. Krell agreed to purchase the property for plaintiff, holding the deed for the same until the plaintiff repaid to the said J.A. Krell the full amount paid, to-wit, four hundred and twenty-five dollars ($425.00), together with eight per cent. (8%) interest thereon; that said deed was intended as a mortgage, and so accepted by the defendant, J.A. Krell, to secure the purchase price above set forth. And the plaintiff has repaid to the said J.A. Krell all of the sum of four hundred and twenty-five dollars ($425.00) under said agreement, except the sum of one hundred and twenty-five dollars ($125.00), which the plaintiff has offered to pay but which the said defendant, J.A. Krell, refuses to accept."
The answer alleges:
"(6) Further answering said complaint, this defendant alleges that he purchased the tracts of land described in the complaint in front of the courthouse door at Lexington. S.C. at a foreclosure sale for the sum of four hundred twenty-five ($425.00) dollars, he being at that price the highest bidder; that this defendant duly complied with his said bid and received a Court deed for the premises from the referee, H.L. Harmon, and this defendant is informed and believes that he is entitled to all the legal rights and privileges granted thereunder."
I conceive the issue to be whether the Referee's deed under which the defendant holds title to the land in question is a deed or a mortgage. The plaintiff contends that it was intended for a mortgage, and the defendant denies that contention and contends that it is a deed and that he is entitled to the benefits thereunder.
Testifying in support of the plaintiff's contention are W.D. Dent and the plaintiff himself, and the plaintiff introduced certain receipts in evidence. Testifying in support of the defendant's contention are Mrs. Lola Hook, C.W. Krell, L.S. Trotti, and the defendant himself.
It is always a difficult task to find the truth and to reconcile testimony of witnesses holding absolutely opposing versions and opinions on the same facts and circumstances, and it is more difficult when the Judge is deprived of the benefit of observing the conduct of the witnesses on the stand while testifying. However, I have read the testimony carefully, and have carefully examined such documentary and written evidence as has been presented in the cause, and find and conclude therefrom as follows:
(1) I find and conclude that the plaintiff in this action, M.D. Young, was a defendant in a certain foreclosure action in the Court of Common Pleas for Lexington County, in which a certain mortgage executed by plaintiff to one Mrs. Trotti was foreclosed. The foreclosure action took the usual and regular course in the Court, terminating in a judgment of foreclosure against the plaintiff in this case who was a defendant in that case. The decree of foreclosure was duly granted, and the property in question ordered sold at a regular salesday in March of 1923. The defendant herein, J.A. Krell, bid the property in at the price of $425, he being at that price the highest bidder. The defendant complied with his bid, and the Special Referee, H. L. Harmon, in accordance with the directions of the decree of foreclosure, duly executed to this defendant a deed of conveyance in the usual form to the tract of land described in the complaint in this action.
(2) I further find and conclude that the alleged agreement, and it is so conceded by plaintiff, contended for by the plaintiff, was not in writing, and there is nothing appearing on the face of the Referee's deed of conveyance indicating that it is different or other than what it purports to be on its face.
(3) I further find and conclude that, if there was an agreement at all between plaintiff and defendant, whereby defendant was to hold and consider the Referee's deed as a mortgage, the agreement was merely a verbal agreement, and so vague and indefinite as to be impossible of enforcement as against the Referee's deed absolute upon its face.
(4) I further find and conclude that the testimony of the plaintiff's witnesses is lacking in many details, and I am unable to say that the plaintiff's evidence presents that clear, unequivocal, and convincing proof necessary to enable the Court to declare the Referee's deed, which is absolute on its face, a mortgage instead of a deed, keeping in mind that the burden of proof is on the plaintiff to establish his case by the preponderance of evidence.
(5) I further find and conclude that the Referee, Harmon, did not testify in the cause; neither is there any evidence of what his intentions were as the agent of the Court in executing the said deed of conveyance. I therefore must conclude that it was not his intention that the deed in question should be and constitute a mortgage, instead of a deed, and under the decree of the Court in the foreclosure suit he could not execute the said instrument as a mortgage without violating the specific directions contained in said decree.
(6) There is a doubt in my mind whether or not parol testimony is admissible in a suit of this kind, where the gist of the action is a direct attack upon the validity of a Referee's deed growing out of a foreclosure suit; yet I have considered the testimony in all of its phases, and have given the plaintiff the benefit of that doubt, even though I am of the opinion that the plaintiff has failed to make out his case by a preponderance or greater weight of the evidence, and therefore must hold against him on the facts.
(7) I will endeavor to set forth and discuss briefly the legal principles which govern me in making this decision. Our Supreme Court has laid down the principle of law, which has been generally recognized in this state, that it is and should be a policy of the Court to sustain judicial sales, where there is no jurisdictional question of fraud involved. Now, as I understand the case under consideration, the plaintiff does not attack the foreclosure proceedings; neither does he seek to set aside the sale of the property, nor does he allege fraud in his complaint against the defendant, but confines himself to the proposition of asking the Court to declare the deed in question a mortgage, instead of a deed. This Court takes the position that a Referee's deed is so much a part of the judicial acts and functions of the Court itself that this Court should hesitate to declare the deed in question a mortgage, unless the evidence presented by the plaintiff is clear and convincing to the contrary.
I am unable to find a case decided by our Supreme Court where the direct point in this case was involved, to-wit, where the Court is asked to declare a Referee's deed in a foreclosure sale a mortgage, instead of a deed, where there is no written evidence pointing in that direction; but, of course, there are numerous cases where deeds have been construed by the Court to be a mortgage in transactions between private individuals, in dealing in a commercial way with each other. I have been largely guided by the general rule of law laid down in those cases in reaching my conclusions in this case.
I therefore find and conclude that the complaint should be dismissed, with the costs charged to the plaintiff, and judgment entered in favor of the defendant herein. It is therefore ordered and decreed that the complaint be dismissed, and that judgment be entered up for the defendant, and the cost of this action be charged against the plaintiff; that the Referee's deed in question be upheld and confirmed, and title to the property in question be vested in the defendant, in so far as the matters litigated in this action are concerned.
Mr. Wm. W. Hawes, for appellant, cites: Judicial deed may be declared a mortgage: 28 S.C. 367; 21 S.C. 392; 68 S.C. 250; 100 S.C. 397; 119 S.C. 313. Relief appropriate to the case made by the pleadings and evidence may be obtained without regard to the form of the prayer for relief: 48 S.C. 175; 129 S.C. 367. As to preponderance of testimony: 28 S.C. 364; 100 S.C. 397; 68 S.C. 255; 129 S.C. 369.
Messrs. Cooper Winter, for respondent, cite: Proof must be clear and convincing: 100 S.C. 397.
September 17, 1928. The opinion of the Court was delivered by
The facts in this case are set forth in the circuit decree, which will be reported, and from which the plaintiff has appealed. We are satisfied with Judge Grimball's conclusion, but do not agree, in certain respects, with the reasoning by which it was reached.
The trial Court expressed, in paragraph 6 of the decree, a doubt as to whether "parol testimony is admissible in a suit of this kind, where the gist of the action is a direct attack upon the validity of a Referee's deed growing out of a foreclosure suit," but gave the plaintiff the benefit of the doubt and admitted the testimony. We do not understand that in this case any attack is made upon the "validity" of the Referee's deed. The purpose of the action, as stated elsewhere by the Circuit Judge, was to have a deed absolute on its face declared a mortgage, and its basis was an alleged oral agreement, forming no part of the foreclosure proceeding.
In so far as the Court's authority to declare a deed to be a mortgage, and the admission of parol testimony for that purpose, are concerned, there is no distinction between a deed executed by an individual and one executed by an officer under order of the Court. In 19 R.C.L., at page 252, it is very aptly said:
"The rule that a deed absolute on its face may be shown by parol to be a mortgage does not generally depend for its application on the circumstance that the grantor in the deed and the alleged mortgagor are one and the same person. * * * Thus it may be provided (proved?) by parol that a deed was given to the grantee therein, not to vest in him the full title, but to secure the repayment to him of sums he had advanced to a third person, to be used by such third person in purchasing for himself the property conveyed. Similarly the proposition finds general support that parol evidence is admissible to show that a person who purchased property at a sale made in the course of judicial proceedings, or in the exercise of a power conferred by a deed of trust, or for a default in the payment of taxes, did so in pursuance of an antecedent understanding with the owner that the title to the property was to be taken and held as a security for the money expended on the purchase."
See, also, 27 Cyc., 993. Bryan v. Boyd, 100 S.C. 397; 84 S.E., 992.
In paragraph 7 of his decree the Circuit Judge says: "This Court takes the position that a Referee's deed is so much a part of the judicial acts and functions of the Court itself that this Court should hesitate to declare the deed in question a mortgage, unless the evidence presented by the plaintiff is clear and convincing to the contrary."
The appellant admits that his case was "properly classified by the trial Judge as one to have the Referee's deed declared a mortgage," but contends that the Judge "erred in holding that stricter proof was required in such a case than in one where the deed in question was not a deed under the order of the Court."
The rule announced by the trial Judge undoubtedly is based upon "the policy of the law to maintain judicial sales, whenever it can be done without violating principles or doing injustice," Patterson v. B. A. Mortgage Co., 112 S.C. 205; 99 S.E., 828. Tederall v. Bouknight, 25 S.C. 280. We think that this rule applies to attacks made upon proceedings which eventuate in judicial sales, or upon the sales themselves, rather than to an effort to have a judicial deed construed in the light of an arrangement foreign to the record, and no evidence of which is found therein. As has already been shown, the plaintiff in this case is not seeking to attack the foreclosure proceedings under which the Referee's deed was made, or to set aside the sale of the property, but is merely seeking to have the Court declare the deed a mortgage in accordance with an alleged extraneous private arrangement. But, even though a Court deed imports no greater sacredness in such case than that of an individual, still we find no error in the trial Judge's statement of the rule that, in order to declare the deed in question a mortgage, the evidence presented should be clear and convincing, since this degree of proof is required in any case seeking such construction of a deed. Bryan v. Boyd, supra.
The judgment of the Circuit Court is affirmed.
MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES BLEASE and CARTER concur.
I agree with the declaration in the opinion of Mr. Justice Stabler, in substance, that where a deed is executed and delivered by the Master, upon a sale in foreclosure, to the purchaser, and a third person makes a claim that, as between him and the purchaser, the deed was intended as a mortgage, although absolute upon its face, the contest is not at all complicated by the fact that the deed was the result of a judicial proceeding; that the attack is in no sense an attack upon the integrity of such proceeding, but is subject to the rule in ordinary cases, which requires the proof to be clear, unequivocal, and convincing. Brown v. Bank, 55 S.C. 51; 32 S.E., 816. Creswell v. Smith, 61 S.C. 575; 39 S.E., 757. Hutchinson v. Turner, 88 S.C. 318, 70 S.E., 410, 806. Bryan v. Boyd, 100 S.C. 397; 84 S.E., 992.
In view of the apprehension of the Circuit Judge, inconsistent with the foregoing declaration, which engendered a doubt even that parol evidence was admissible at all to sustain the contention of the claimant, it appears to me that the mental attitude of his Honor was, in a case like the present one, to require proof greater than that which was clear, unequivocal, and convincing, practically beyond a reasonable doubt, and that consequently his conclusion is not entitled to the weight which would ordinarily be accorded the finding of fact by a Circuit Judge in an equity case. Consequently I feel free to discuss the evidence, uninfluenced by such conclusion.
It seems to me that the evidence meets the requirements of the rule; that it is clear, unequivocal, and convincing; that the transaction was a loan, secured by the Master's deed to the defendant, construed as a mortgage. The plaintiff's home was under mortgage to a Mrs. Trotti; his wife had left him, "gone with a handsomer man," perhaps; he had an idea that a foreclosure proceeding would clear the title of any claim which she might set up in the property. It appears beyond doubt by the testimony of Mr. Trotti, who represented the mortgagee, that Young, the mortgagor, instigated the foreclosure for the purpose above indicated. His testimony is that he applied to the defendant to buy the property in for him at the sale; he obtained from Trotti a statement of the amount necessary to clear the Trotti mortgage and costs, and gave the figures to the defendant, $425; the defendant bid off the property at that figure and complied, taking a deed from the Master, as the plaintiff testified, under an agreement to allow him two years within which to pay the debt, $425, with 8 per cent. interest. The defendant makes an exceedingly weak and evasive denial of this testimony.
If this were all, there would be some doubt of the testimony being clear, unequivocal, and convincing. But what appears to me to "pin the basket" upon the defendant is the testimony of Mr. Dent, County Auditor. He testified that, soon after the sale, Young and Krell came into his office to see about the assessment of the property for taxation. It then stood upon his books in the name of Young. His testimony was in effect that it was understood and agreed between them that it should remain in Young's name, he paying the taxes:
"* * * We had an understanding in this particular matter, and this colored man was to have an opportunity to redeem this land, and both parties were present and requested that I do it that way. * * * He said he would give him an opportunity to redeem the land. * * * I took it to mean that Mr. Krell would give him a chance to redeem it, but I think he used the words `give him an opportunity to redeem it.' * * * Yes; I knew the land belonged to Mr. Krell, but I thought he might pay him the money back, with interest. * * * Mr. Krell did say that he was going to give him a chance to redeem this land, or buy it back, and that Mack [Young] could pay the taxes. * * * It was understood that it stay in Young's name, that Mack [Krell?] would give him an opportunity to redeem it. * * * I meant by that he would redeem the land back to him, so that he could get possession of it after paying the principal and interest to Mr. Krell."
The defendant made no denial of Mr. Dent's statements, except to say that what he meant was that he would sell it back to Young upon indefinitely stated terms, at a profit of $100. Young continued in possession of the property, and is in possession still. He paid the taxes for 1923, 1924, and 1925, and made, as he claims, various payments upon the obligation.
The defendant contends that Young's occupancy was as a tenant at $10 per month, yet not a single one of the dozen receipts mentions such a relation; they all stated "on account," which indicates an outstanding obligation, and not rent. His effort to connect the receipts with store accounts is not at all convincing. He admits that many of these accounts were closed by checks upon a bank, in which Young had no deposits, scheming for a prosecution under the bogus check law, in terrorem, as an aid to collection.
The case has not by any means a fragrant odor from the defendant's quarter. I think that the judgment should be reversed, and the case remanded to the Circuit Court, for the purpose of stating the account between the parties, and a decree of foreclosure for the defendant in the amount ascertained to be due to him.