I cannot agree with the majority.
First. The complaint stated a case at law for the recovery of specific real property. The answer denied plaintiff's assertion of title. That made a case at law, and for trial by a jury. Code of 1894, sec. 274. It is true the answer contained other allegations; but that is allowable. Code of 1894, sec. 171. The parties waive trial by jury, as they have a right to do. Code of 1894, sec. 288. The judgment of a Judge, substituted for that of a jury, may not be reviewed here, in a case like this. Stack v. Haigler,90 S.C. 320, 73 S.E. 354.
Second. On the facts if reviewable, the judgment below is right. The justice of the case is with defendant. The land in issue was worth, at the making of the deed, $2,500; there is no denial of that by anybody. The plaintiff demands it for $500. The defendant was then an old man past 70 years of age, and unable to read or write. The plaintiff was young and somewhat literate. The land in issue is the seat of defendant's only residence, where he has lived for more than forty years. The defendant was pressed for money when the $500 was advanced; the receipt of it and the execution of the deed was not spontaneous. The plaintiff never exercised acts of ownership and dominion, nor did she ever pay taxes on the land. The plaintiff admitted to three or four persons that the transaction was a loan and not a sale. *Page 373
It is true defendant has married since the transaction; and it is also true the plaintiff has done likewise. It is true the defendant has done some things inconsistent with his present claim; but he has done more things consistent therewith.
The proof satisfies me that the transaction did not amount to a sale, but to a mortgage. That conclusion loses the plaintiff nothing; the contrary conclusion loses the defendant all.
I think the judgment below ought to be affirmed.