April 5, 1911. The opinion of the Court was delivered by This is an action, for the purpose of having certain deeds, declared to be mortgages, and for an accounting of rents and profits.
The facts are fully stated, in the decree of his Honor the Circuit Judge, which, together with the appellants' exceptions will be reported.
We are satisfied, that the deed executed by Frank Hutchinson to W.E. Henderson, on the 20th of January, 1899, was intended as a mortgage; also, that John L. Turner, the defendant, had notice that it was so intended, at the time the deed was executed by W.E. Henderson, to him, on the 14th of January, 1905; and that he is, therefore, not a purchaser for valuable consideration without notice.
The following instrument of writing was introduced in evidence: "This indenture made this fourteenth of January, nineteen hundred and five, by and between John L. *Page 329 Turner, party of the first part, and Hester Hutchinson, party of the second part,
"Witnesseth, That the said John L. Turner, has this day agreed to sell and convey to the said Hutchinson, all that tract or parcel of land, situate, lying, and being in Verdery township, county and State aforesaid, containing ten acres more or less, and bounded on the north by land of Hannah Field, on the east by land of Whit Hutchinson and W.P. Devlin, on the south by land of said John L. Turner, and on the west by land of Lucretia Hearst and others, being about one-third of the tract of land, formerly owned by Frank Hutchinson, and that he will make her a good and sufficient deed in fee simple, to the said tract of land, upon payment to him by her, of the sum of one hundred and thirty-two dollars and fifty cents, at any time within two years, from the date of this agreement.
"And, that the said Hester Hutchinson, hereby agrees, that she will pay the said sum of one hundred and thirty-two dollars and fifty cents to the said John L. Turner, within two years from the date of this agreement.
"And, it is expressly agreed, by and between the said parties, 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, then the said John L. Turner is absolutely discharged, at law and in equity, from all liability to make and execute such deed, and may treat the said Hester Hutchinson, as a tenant holding over after the termination of her lease, or may enforce the payment of said debt.
JOHN L. TURNER, (L.S.) her HESTER X HUTCHINSON. (L.S.)' mark
"In the presence of Ellis G. Graydon."
Mr. Ellis G. Graydon, an attorney of ability and long experience, testified as follows: "I prepared this contract *Page 330 between Hester Hutchinson and Turner, on the 14th of January, 1905. I explained the whole contract to Hester and witnessed it. I explained the contract fully to Hester."
The said agreement did not undertake to bind any parties except Hester Hutchinson and John L. Turner.
Its provisions estopped her from disputing the title of Turner; and the only right in the land, which she thereafter had, was to require Turner to convey to her, the ten acres of land described in the said agreement, upon the payment of the sum of one hundred and thirty-two dollars and fifty cents, within two years from the date of the agreement.
John L. Turner testified as follows:
"When Hester Hutchinson could not pay me for her land, in the contract limit, I gave her another year. When that year was out and she did not pay, I gave her another year, in which to pay for the land. After that she asked me for further extension, I told her I would let her live in the house and work a patch, but I would take the balance of the land. Upon these conditions I granted her another year's time. Since then she refuses to surrender me possession of any of the land. She had never exercised any right of possession over any of the land, except that I sold her. She never claimed the land." Thus showing that she failed to comply with the requirements of the contract, even when further time was extended, and thereby forfeited all her rights thereunder. In so far as her interest in the land is concerned, John L. Turner must be regarded as the owner of the land.
The testimony shows that the plaintiff Whit Hutchinson and Maggie Means, and the defendant John L. Turner, now own the entire tract of land as tenants in common — the interest of Whit Hutchinson and Maggie Means each being one-third thereof and the interest of John L. Turner being the remaining third thereof.
The master in his report finds "that there is due by the plaintiffs to the defendant on his mortgage debt, the sum *Page 331 of eighty-four and .03-100 dollars, principle and interest inclusive to date June 21st, 1910." We are satisfied that this is the correct amount now due under the mortgages.
When John L. Turner became the owner of Hester Hutchinson's one-third interest in the land, the indebtedness which was secured by a mortgage of the premises, was thereby proportionately extinguished, to wit, to the extent of one-third of eighty-four and .03-100 dollars, leaving an indebtedness of two-thirds of eighty-four and .03-100 dollars still, upon the two-thirds interest of Whit Hutchinson and Maggie Means. Trimmier v. Wise, 17 S.C. 499.
Upon the payment of two-thirds of said indebtedness, to wit, two-thirds of eighty-four and .03-100 dollars, the two-thirds interest of Whit Hutchinson and Maggie Means in said land, shall be discharged from the lien of all mortgages owned by the defendant.
The Court being equally divided in opinion the judgment of the Circuit Court stands affirmed.
MR. CHIEF JUSTICE JONES and MR. JUSTICE HYDRICKthink the judgment of the Circuit Court should be affirmedfor the reasons therein stated.
April 5, 1911.