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 thepurchaser, 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 *Page 10 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 toredeem this land, and both parties were present and requested *Page 11 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. *Page 12