The opinion of the Court was delivered by
Mr. Justice Pope.It seems that in the year 1869, Henry Hartzog conveyed, by his deed, a tract of land, containing t8i acres, unto F. W. Fairey, in trust, first, for Mrs. A. S. M. Patrick, with power of appointment in her, but in case such power was not exercised, then to' her surviving children and their heirs at law at her death. On the 25th September, 1870, Mrs. Patrick died intestate, never having exercised any power of appointment, thus vesting said lands in her six daughters and one son, to wit: Mrs. M. R. Brickie, Mrs. F. M. Leach, Mrs. Mary A. Dantzler, Mrs. Anna Eliza Gates, Mrs. Lizzie Gates, Mrs. Hattie C. Bruce, and William F. Patrick. That thereafter the said Anna Eliza Gates departed this life intestate, and her share vested in her husband, B. W. Gates, and one infant son, William, who in a few years died while still an infant, leaving his father, B. W. Gates, as his only heir at law. In the year 1889, each one of the heirs at law of the said Mrs. A. S. M. Patrick, including the husbands of the five daughters, then living, and the wife of W. F. Patrick, also B. W. Gates, in his own right, by a deed under their respective hands and seals, made a partition of the said 181 acres of land, and also some lands of which they were also seized as tenants in common, derived from their father — one G. Y. Patrick, deceased— amongst themselves; so that the 181 acres of land were, under said deed of partition, assigned to and vested in Mrs. Mary A. Dantzler and B. W. Gates and Mrs. Lizzie Gates. In the year 1894, Mrs. M. R. Brickie chose to disregard such partition by bringing this her action for partition in the Court of Common Pleas. Inasmuch as B. W. Gates and Mrs. Lizzie Gates, in the year 1886, had made a deed in consideration of $25, whereby they conveyed their shares in the 181 acres of land to F. W. Fairey, and inasmuch as Mrs. Hattie C. Bruce had, in the year 1885, made a deed in consideration of $50, whereby she conveyed her share in said lands (181 acres) to the said F. W. Fairey, who departed this life in the year 1891, leaving a will of which J. R. Hamilton was executor, and also1 leaving as the legatees under *519said will, Susan E. Connor, Maggie Fairey, Rachel A. Hamilton, Eugenie Reeves, Fannie Fairey, Bettie Fairey, Marie Fairey, Franklin Wm. Fairey, and Frankie Fairey; she included the said executor and said legatees under the will of F. W. Fairey, deceased, parties defendant to her action along with the son and daughters of Mrs. A. S. M. Patrick and B. W. Gates, who represented one of such daughters. Only the defendants, the said daughter and son of Mrs. A. S. M. Patrick, and B. W. Gates and J. R. Hamilton, as executors of the last will of F. W. Fairey, deceased, answered the complaint. The defendants, B. W. Gates and Lizzie Gates, set up in their answer a denial that plaintiff had any cause of action, on the ground that she was a party to the deed for partition made in 1889, by which this 181 acres were vested in her sister, Mrs. Mary A. Dantzler, and the said B. W. Gates and the said Mrs. Lizzie Gates, and these defendants also set'up in their answer that their deed to F. W. Fairey, while purporting to be an absolute deed, was really only intended and was accepted as a mortgage for the sum of $25. The defendant, Mrs. Hattie C. Bruce, in her answer, insisted that the plaintiff had no cause of action because of the deed made by her touching the 181 acres of land in the year, 1889, and also alleged that her deed to F. W. Fairey was really a mortgage to secure a sum of money which has long since been paid, to wit: in the lifetime of the said F. W. Fairey, now deceased. The other defendants, except J. R. Hamilton, united in a' denial of the cause of action of the plaintiff, alleging as the ground therefor the deed made by her in 1889 for a partition of the lands in question, under which partition the plaintiff had received, and still retained, lands. The defendant, J. R. Hamilton, as executor, set up as subsisting deeds the two executed to his testator by the defendants, B. W. Gates and Mrs. Lizzie Gates and Mrs. Hattie C. Bruce.
At the hearing before Judge Aldrich, the defendant, J. R. Hamilton, demurred to so much of the answers of B. W. Gates, Mrs. Lizzie Gates, and Mrs. Hattie C. Bruce as set *520up that their deeds were but mortgages. Judge Aldrich dismissed the demurrer. Thereafter the action came on for trial upon testimony and the pleadings. There were some objections to testimony which were overruled. Upon the merits, the Circuit Judge held that plaintiff was not entitled to the relief she prayed for, and also between the defendants, he held that F. W. Fairey held the two deeds only as mortgages; that the defendant, J. R. Hamilton, as executor, &c., of F. W. Fairey, was entitled to- a judgment against B. W. -Gates and Mrs. Lizzie Gates for the sum of $25, and interest thereon from 24th March, 1886, to wit: $47.30, payable in ninety days, and if not so- paid, then the master shall sell their interest and estate in the Crossroads or Zeigler tract for cash, &c.; that the defendant, J. R. Hamilton, as executor, was entitled to no- judgment against Mrs. Hattie C. Bruce, but on the contrary was indebted to her in the sum of $100. The Circuit Judge then decreed that the plaintiff and the estate of F. W. Fairey should pay the costs. Before going further, it is well to state that Judge Aldrich adjusted the equities-between the heirs at law of Mrs. A. S. M. Patrick. The decree of Judge Aldrich and the deed made in 1889 will be reported.
The plaintiff and the defendant, J. R. Hamilton, appeal from the decree and as their grounds of exception present the following: The defendant, J. R. Hamilton, executor, appeals from the said decree upon the following grounds and exceptions: 1st. Because the Circuit Judge erred in overruling the demurrer to the answer of B. W. Gates and Lizzie E. Gates, and in overruling the demurrer to the answer of H. C. Bruce. 2d. Because the Circuit Judge erred in admitting, over objections, statement of account between G. Y. Patrick and V. V. Brickie, who were not parties, and which was written out on a sheet of paper and not signed by any person. 3d. Because his Honor erred in admitting the testimony of W. F. Patrick, over objections, as to conversations and statements made by F. W. Fairey, deceased, relative to transactions with himself, the defendants, B. W. *521Gates, H. C. Bruce and others interested in the suit, when he (Patrick) is a party to the action and interested in the result. 4th. Because his Honor erred in admitting, over objections, the testimony of witness, B. W. Gates, as to conversations and transactions between himself and F. W. Fairey, deceased, when he (Gates) is a party to the action and interested in the result. 5th. Because his Honor erred in admitting the testimony of the witness, A. H. Bruce, as to conversations and transactions between himself and F. W. Fairey, deceased, when the same was not admissible, because they are not responsive to the issues, and where the witness admits that he had some interest in the result. 6th. Because his Honor erred in finding' that the deed from the defendants, B. W. Gates and Lizzie F. Gates, to F. W. Fairey, was given as security for a debt and-, therefore, a mortgage, when the said deed was absolute on its face, with general warranty and no written defeasance, and there was no competent testimony upon which to base such a finding. 7th. Because his Honor erred in finding that the deed from the defendant, H. C. Bruce, to F. W. Fairey was given as security for a debt and, therefore, a mortgage, and that said debt has been paid, when said deed was absolute on its face, with general warranty and no written defeasance, and no competent testimony to support such findings. 8th. Because his Honor erred in finding that J. R. Hamilton, as executor of F. W. Fairey, was indebted to Mrs. H. C. Bruce in the sum of $100, being amount overpaid on the sale of a certain lot, when no such issue was made in the pleadings, when Mrs. Bruce in her answer does not -allege nor demand such amount, nor any other amount to- be paid by appellant, and where there is no competent testimony to- warrant such a finding. 9th. Because his Honor erred in finding that this appellant should pay one-half of the costs, because much of the litigation was due to his efforts to sustain the deeds to his testator, F. W. Fairey, when he was brought into the action by the order of Court after it was ascertained that he held such deeds, and when it was his duty, as executor, to *522claim for his testator’s estate what the said deeds purported on their face to embrace, and when there was no' testimony showing that he had any knowledge of the transactions more than appeared on the face of the papers.
The plaintiff appeals from the said decree upon the following grounds and exceptions: ist. Because his Honor erred in finding that the agreement for partition was binding, and ordered the same to be carried out in accordance with its stipulations, when F. W. Fairey, at the time said agreement was made, held the legal title to the interests of three of the parties to said agreement in the land in question, which was embraced in said partition and division, and he (Fairey) was not a party to the same. 2d. Because his Honor erred in finding that said agreement for partition was binding and should be carried out, when the testimony showed that none of the parties had complied with it after five years had elapsed from the time of execution, and that the same was impossible of performance, because one lot assigned to the plaintiff did not belong to the estate being partitioned. 3d. Because his Honor erred in finding that the plaintiff should pay one-half of the costs of the proceedings when the same was brought to effect a final settlement between all of the parties interested, which as appears from all the testimony could not be done without action of some nature, when he should have found that each of the parties should pay his or her share of the costs proportioned as to their several interests.
1
1 We will now examine these grounds of appeal on their merits, first disposing of those presented by J. R. Hamilton. This appellant thinks that the Circuit Judge erred in overruling the demurrer interposed to portions of the answers of B. W. Gates and Mrs. Lizzie Gates and also that of Mrs. Hattie C. Bruce. The answer of Mr. and Mrs. Gates in the IV., V., and VI. paragraphs thereof deals with this matter. The exact language of the answer on this point is: ‘TV. That on or about the 24th day of March, 1886, these defendants executed and delivered to one *523F. W. Fairey their deed of conveyance, whereby they conveyed to him all the interest of the said Lizzie E. Gates, by the name of E. E. Gates, in the said tract of land described in said complaint, but they allege that the said conveyance, although absolute on its face, was intended as a mortgage only, and as a security for the repayment to the said F. W. Fairey of the sum of $25, and the interest thereon, the said sum having been borrowed by the said B. W. Gates from the said F. W. Fairey; and they demand the production of the said deed of conveyance. These defendants suppose that it is under the said F. W. Fairey that the said J. R. Hamilton claims an interest in said land. V. That on the 27th day of March, 1886, the said B. W. Gates and F. W. Fairey entered into an agreement by which it was agreed that the said B. W. Bates should remain in possession of said land, and that the said F. W. Fairey should convey the same to him at any time when he should pay the sum of $25, and $3 rent for a house ánd lot in Bamberg, occupied by said B. W. Gates, over and above the taxes and rent for said tract of land, which by said' agreement was fixed likewise at $3 per annum; that the said B. W. Gates occupied said house and lot for about five years, and he regularly paid his- portion of the taxes on the land described in the complaint, but that the said F. W. Fairey never exacted the payment of the rent of either the land or the house and lot, and never intended that the same should be paid; and they allege that a.ny claims for said rent is barred by the statute of limitations, which they plead in bar thereof. VI. They allege that they areperfectly willing that the said mortgage debt of $25, with lawful interest thereon from the 24th day of March, 1886, shall be paid out of the interest of the said B. W. Gates and Lizzie E. Gates in said tract of land, but they deny that said J. R. Hamilton has any other claim upon said land save as assignee of said F. W. Fairey as an equitable mortgagee.” The “Case” discloses that the appellant bottomed his support of the demurrer upon the facts that in the paragraphs of the answer we have just quoted there is an absence of any allegations that *524the deed from these two defendants to F. W. Fairey was procured through ignorance of the grantors, through mistake, undue influence, or fraud; which, he conceived, were necessary allegations; and also because it is not alleged in such paragraphs of the answer that such deed was given as a security for a debt. It is not an unusual thing to happen in this State that, for some cause or other, a deed, absolute on its face, is taken, when only a pledge of land as security for a debt is intended. In such instances our Courts demand that the evidence shall be clear and convincing that it was a mortgage, and not a deed absolute, which was intended. Arnold v. Maltison, 3 Rich. Eq., 153; Petty v. Petty, 52 S. C., 54; 3 Pom. Eq. Ju., sec. 1196. We are unable to recall any decision of our Courts that go anything like the length proposed by the appellant. Indeed, we might say that there are no cases in our reports of the character referred to. It will be noticed that in the fifth paragraph of the answer, now under consideration, it is alleged that an agreement was entered into on the 27th of March, 1886, between Fairey and B. W. Gates, which showed that the deed to Fairey was a security for a debt, and one not large in amount. It is true that it is not alleged that this agreement is in writing (though it afterwards proved to be so), yet its terms are so definite that one would in looking at them so conclude. That the deed was a security for a debt is definitely alleged; therefore, these deeds of 24th March, 1886, and 27th March, 1886, may be construed together as furnishing the scheme of the parties, as we have no doubt all of the parties, so intended. We must hold, therefore, that the demurrer, so far as the answers of B. W. and Mrs. Lizzie Gates are concerned, was properly overruled.
It remains for us to consider that directed against the answer of Mrs. Hattie C. Bruce. The allegations of the answer of Mrs. Bruce are not as distinct as those of the answer of Gates, but still its allegations are positive that the deed was intended as a security for a debt — to be, therefore, a mortgage, and that such debt was paid in the lifetime of F. *525W. Fairey. The appellant urges the same grounds in support of the demurrer that we have just overruled. We repeat in this connection that our Courts have never adopted such strict rules as those set up b3r appellant. We do require that the proof shall be clear and convincing that only a security for a debt was in the minds of the parties. We overrule the exception numbered one.
2 We will next consider the exceptions relating to the admission of testimony. In the second exception it is complained that the Circuit Judge should not have considered a statement of account between G. Y. Patrick and V. V. Brickie. A short reference to the facts as they appear in the “Case” will be necessary to bring out with some clearness the question now made by appellant. It seems that G. Y. Patrick was the husband of Mrs. A. S. M. Patrick, and the father of the plaintiff and other heirs at law of Mrs. Patrick, so these people were also his heirs at law. V. V. Brickie was the husband of Mrs. M. R. Brickie. Old Mr. Patrick bought one acre of land from V. V. Brickie, and upon this acre a dwelling house was built for Mrs. M. R. Brickie. V. V. Brickie did not execute a deed to the one acre, but gave a bond for title. This acre and house vested, under the deed executed between the heirs at law of Mrs. Patrick in the year 1889, in Mrs. Brickie. It was important to show that V. V. Brickie had been paid by G. Y. Patrick all the purchase money of the acre of land, and this account between Mr. Brickie and Mr. G. Y. Patrick showed this. We see no error here.
3 The appellant excepts to W. F. Patrick being allowed to testify to conversations and declarations made by F. W. Fairey, deceased, relative to> transactions of said Fairey and B. W. Gates, “when he, Gates, is a party to the action and interested in'the result.” We cannot see that because B. W. Gates is a party to the action and interested in the result, that another witness, tO' wit: W. F. Patrick, cannot detail such conversations or declarations he may have heard Mr. F. W. Fairey make while alive. R. W. *526Gates could not detail such declarations or conversations made to him by Mr. Fairey, but the same reason does n<pw apply to Mr. Patrick. This exception is overruled, becaAse the said witness, W. F. Patrick, is not prevented from testifying by any provision of section 400 of the Code.
4 The next question is not so free from difficulty, if, as appellant suggests, the Circuit Judge permitted the testimony of B. F. Gates as to transactions of such witness with F. W. Fairey; but we will consider the materiality of this testimony of B. W. Gates when we come to pass upon the sixth ground of appeal; for, if the testimony of B. W. Gates was immaterial, even if the Circuit Judge erred in not striking it out as incompetent, no harm has come to. the appellant. So we will now pass upon the sixth exception, Which relates to the alleged error of the Circuit Judge in holding that the deed of B. W. Gates and Mrs. Lizzie Gates to F. W. Fairey for their two-sevenths of the 181 acres at the consideration of $25, was a mortgage and not a deed. The testimony in this case establishes the value of the 181 acres of land to. be $1,060. Thus B. W. Gates and Mrs. Lizzie Gates, if J. R. Hamilton is correct, sold to F. W. Fairey what was worth about $300, for the sum of $25, and that, too, when Mr. Fairey knew the lands, for he held the legal title from the j^ear 1869. But all trouble in regard to this deed vanishes when it is construed along with what is called the lease executed by F. W. Fairey to B. W. Gates on the 27th March, 1886, when it is declared in such lease that it was to take effect on the 24th March, 1886, on the very day, in fact, on which the deed itself was executed to Fairey, and in this lease Fairey binds himself to make a deed to B. W. Gates for the land on the payment of $25. This lease, together with the testimony of W. F. Patrick, shows plainly that it was a mortgage and not a deed that B. W. Gates and Mrs. Lizzie Gates made to F. W. Fairey to secure a debt of $25, and hence any admissions, conversations or transactions between Fairey and Gates, so far as *527being testified to by B. W. Gates, was immaterial. Hence fourth and sixth exceptions are overruled.
5 6 So far as the fifth and seventh exceptions are concerned, we may remark that A. D. Bruce, the husband of the defendant, Mrs. Hattie C. Bruce, was a competent witness to testify to what took place between his wife and Mr. Fairey in regard to the purchase and sale of the house and lot in Branchville—Eichelberger v. Hughey and wife, 11 S. C., 36—and that the deed executed by his wife to Fairey was intended as a security for that debt and not as a deed absolute. We do not find any difficulty in -adopting the finding of fact by the Circuit Judge that this deed was intended as a mortgage. These exceptions are overruled.
7 Now as to' the eighth exception, which complains of the Circuit Judge for having decreed that J. R. Hamilton, as executor, &c., for F. W. Fairey, deceased, should pay to Mrs. Hattie C. Bruce the sum of $100, we think it has substance. The defendant, Hamilton, as executor, was not called upon by the pleadings to answer any such demand at the hands of Mrs. Bruce. Jf the statute of limitations was a bar, he had no opportunity to plead it. We are not satisfied with the conclusion of the Circuit Judge in this particular, and must sustain this exception.
8 We do not see any objection to- requiring the estate of F. W. Fairey'-, deceased, to pay one-half of the costs. Such estate is the losing party. Besides, this is a matter very much in the .discretion of the Circuit Judge on the equity side of his Court. The ninth exception is, therefore, overruled.
9 8 Having thus disposed of the exceptions presented by J. R. Hamilton, we will now turn to the executions presented by Mrs: M. R. Brickie, the plaintiff. We must overrule these exceptions, for we think it is abundantly-established that all the heirs at law of Mrs. Patrick, as well as the same parties as heirs at law of Mr. Patrick, their father, did, in the year 1889, make a deed by which this 181 *528acres was vested in the defendant, Mrs. Dantzler, and B. W. and Mrs. Lizzie Gates. As long, therefore, as this deed stands, the plaintiff has no right to ask partition of this land. We think the Circuit Judge in his decree has taken pains to adjust all the rights of parties under this deed of 1889. Since we have disposed of the contention between Hamilton, as executor, and Mrs. Hattie C. Bruce and B. W. Gates and Mrs. Lizzie Gates by upsetting said Hamilton’s claim against them as holding only mortgages, instead of deeds, the way of the plaintiff is clear. The plaintiff- certainly received a house and lot under this deed for family partition in 1889, and she has never returned it or offered to return it. In equity, she has shut the door against herself as to obtaining any such relief as she now prays. She ought to pay half the costs as decreed by the Circuit Judge; she is a losing party. Her exceptions are, therefore, overruled.
It is the judgment of this Court, that the judgment o-f the Circuit Court be modified, as that J. R. Hamilton, as executor, &c., of F. W. Fairey, deceased, shall not be required to pay unto the defendant, Mrs. Hattie C. Bruce, the sum o-f $100, and in all other respects such'judgment is affirmed; and the action is remanded to the Circuit Court for such % other proceedings as may be necessary.