(dissenting):
I respectfully dissent.
This case was originally assigned to the writer to author. I submit as part of my dissent the original opinion, with slight modifications, which I authored and proposed as the majority opinion.
ISSUES
The dispositive issues of merit are whether (1) the trial judge erred in holding that the so-called consideration of $403,000 for the transfer of the stock of Peoples Joint Venture Group, Inc. was based upon the market value of the stock and that by the transfer, Peoples Federal Savings & Loan Association (the S&L) divested itself of any interest in the profits or control of the real estate development project (the venture), *153(2) the trial judge erred in holding that “the sale of the stock was an arm’s-length” transaction, (3) the trial judge erred in holding that after August 9,1985, the S&L was not a joint venturer in the business of the venture, (4) the trial judge erred in failing to hold that because the S&L was engaged in a joint venture with Propps, the S&L was liable to American Community Development Group, Inc. (ACDG) for the debt owed it by Myrtle Beach Golf and Yacht Club, Inc. (MBG&YC), a general partnership (the Partnership) and, therefore, ACDG’s lien was superior to that of the Partnership, (5) the trial judge erred in holding that ACDG was judicially and collaterally estopped to assert that the lien of its mortgage was superior to the lien of the S&L’s mortgage, and (6) the trial judge erred in holding that ACDG, by consenting to the order of settlement in its case against the Partnership, waived its right to assert lender liability on the basis of joint venture.
FACTS
In order to avoid duplication or restatement of relevant facts, I review the salient background facts and will incorporate more specific facts within my discussion of the issues.
A major consideration of this case is that the alleged mortgage upon which the S&L bases its case is more than a mortgage. This alleged mortgage, and the other alleged mortgages given by the Partnership to the S&L, are in part mortgages, but contained additional agreements. The subject mortgage provides, inter alia, that the word “default” encompasses many situations, including the conveyance of any part of the subject property without the prior approval of the S&L. Thus, the S&L retained control over the terms and conditions, including the purchaser, of any sale within the subdivision or Phase II. The agreements also authorized the S&L, upon default, to take possession of the property and to, in effect, operate the venture.
Early in 1984, the officers of the S&L and R.L. Propps, a real estate speculator, originated a plan for a joint venture to purchase certain tracts of land for the purposes set forth in the next paragraph. The S&L, with a paid in capital of $500, formed a wholly owned subsidiary corporation which it aptly named Peoples Joint Venture Group, Inc. This corporation entered into a partnership agreement with MBG&YC, a closed *154corporation wholly owned by Justice, Inc., of which Propps was the principal owner.
The partnership agreement provided that MBG&YC would own a sk interest in the venture and the Peoples Joint Venture Group, Inc. would own a 1k interest. Each partner invested $100 in the Partnership. The parties agreed that the purposes of the Partnership were (1) to acquire a tract of land containing 71.2 usable acres (Tract I) and a tract of land containing 156.5 usable acres (Tract II), both located in Horry County, South Carolina; (2) to develop not less than 295 single-family lots and 48 multifamily lots on Tract I; (3) to develop a nine-hole golf course, clubhouse, swim and tennis club, and lakes on Tract II; and (4) to acquire and develop those certain tracts of land designated as Tract III through Tract X in accordance with a development plan attached to the Partnership Agreement.
The parties also agreed that Tract I would be acquired for a purchase price of $498,400 and Tract II would be acquired for $1,095,500. Importantly, the contract provided that the S&L would provide all funds for the purchase of the two tracts of land and that no additional capital contributions would be required.
Events moved hurriedly. On February 29, 1984, the S&L made a loan to the Partnership in the amount of $1,500,000. On the same day, the S&L made a second loan to the Partnership in the amount of $3,000,000. On August 27, 1984, the S&L made a loan to the Partnership in the amount of $350,000. On September 20,1984, the S&L made another loan to the Partnership in the amount of $1,800,000. These funds were advanced for the purpose of acquiring the property to be developed and for construction and development costs.
Construction began, roads were built, electrical facilities, and water and sewage disposal facilities were constructed. According to Magrath’s testimony things were going well. On August 1, 1985, however, the S&L wrote a letter to the effect that it intended to divest itself of its stock in the Peoples Joint Venture Group, Inc. The record reflects that early in December 1985, construction projects were slowly diminished and came to a stop before April 17, 1986. Construction was restarted on June 30, 1986. During this period, the record shows that the Partnership was involved in various lawsuits, *155including several to establish attachments and liens against the Partnership.
The record reflects that the Partnership was sold in June 1986, to Beach Holding Corporation, whose principals remain undisclosed, and that $1,800,000 was infused into the then-failing business of the Partnership. The record is cloudy as to how Propps retained his interest in the Partnership. Evidently Propps had some agreement by which he still remained president of the corporations which owned the Partnership. In April 1987, there is of record a Settlement Agreement in the suit of ACDG v. the Partnership, by and through its general partners, Myrtle Beach Golf & Yacht Club, Inc., and MBG&YCII, Inc. (f/k/a Peoples Joint Venture Group, Inc.), et al. The settlement papers and the Partnership mortgage incident thereto were signed by Propps as the President of the corporations. The record also reflects that Propps was involved in the Partnership business until January 1988.
ACDG put the Partnership and MBG&YCII in bankruptcy on June 3,1988. Around August 1,1988, obviously on the petition of the Partnership, the U.S. District Court issued an order permitting the S&L to operate the golf course. It operated the golf course until February 13,1989, when Ted Miller, an employee of the S&L, was appointed receiver of the golf course portion of the amenities tract of the venture. The receivership was part of the foreclosure proceeding that the S&L instituted on September 12,1988.
While there is evidence of record by which this Court might well hold that the preponderance of evidence of record establishes that Peoples Joint Venture Group, Inc. was a mere instrument of the S&L and that this Court should pierce the corporate veil of Peoples Joint Venture Group, Inc., I would hold that is not necessary for this decision.
DISCUSSION
I.
I would hold that the preponderance of evidence of record establishes that the trial judged erred in holding that the consideration for the transfer by the S&L of its Peoples Joint Venture Group, Inc. stock was based upon the market value of the stock.
*156On August 1, 1985, George Magrath, Jr. wrote a letter to Justice, Inc. containing a proposition upon which the dispositive facts of this case evolved. I quote in pertinent part:
In reviewing our file on the Yacht Club, I would like to propose the following structure for the Phase II financing of the project:
Phase II Amenities Loan (Non-Revolving)
Existing Amenities Loan $3,000,000
18 Hole Golf Course 1,205,079
Maintenance Complex 148,000
Swim Club 183,751
Lakes 28,961
Clubhouse 200,455
Interest Reserve 340,000
Commitment Fee 21,000
Total Budget $5,127,246
Peoples would also require that $4,000 from each single family Phase II dwelling closed and $3,000 for each Phase II multi-family dwelling unit closed be applied as a release figure. Peoples would at least initially, require that the net proceeds from each Phase II closing be applied to the amenities loan.
Finally, Peoples would immediately convey its interest in the Partnership to Justice and/or Loyola for $403,000 to be paid as $500 per closing for each of the 806 closings in Phase II.
I note that the S&L’s sales price represented its planned share of the profit on the remaining unsold units and unrealized equity in Phase II of the project. The S&L, thus, assured itself of its anticipated profits when the venture was completed.
There is no answer of record to the proposed loan and sale contained in the August 1 letter, but a commitment létter was issued on August 7,1985. The transfer of stock of the Peoples Joint Venture Group, Inc. to Propps was consummated on August 9,1985, on the terms and conditions set forth in the letter *157of August 1,1985. No cash consideration passed for the transfer of stock of the Peoples Joint Venture Group, Inc. to Propps. The S&L did not, on August 9, 1985, or thereafter, make an entry of an account receivable on their books nor is there any evidence of its having received any consideration for the transfer. To the contrary, the preponderance of evidence of record clearly establishes that no consideration ever passed. I address part of the evidence of record.
First, there is the last paragraph, quoted above, of Magrath’s letter of August 1,1985.
Second, the minutes of a meeting of the Board of Directors of Peoples Joint Venture Group, Inc., held on August 8, 1985, reflect that the following motion was made and passed:
A Motion was made by Mr. Magrath, Jr. to authorize the sale of all the stock of Peoples Joint Venture Group, Inc. to Justice, Inc., Freedom Realty, and/or Rodney L. Propps in consideration of $403,000.00 to be paid as $500 per unit closed in Phase II of Myrtle Beach Golf and Yacht Club. The motion was seconded by Mr. Dargan and passed with a unanimous vote.
Third, Propps testified, “they took our profit projections and took their share of it.” Magrath testified about the $403,000 stating, “Mr. Floyd, it was our analysis of what the unrealized equity in that property was.”
Lastly, there is of record an interoffice memorandum from Buddy Magrath of the S&L dated August 19,1987, which provides:
You mentioned the $403,000 loan. That loan represented the sale of our interest in the project some two years ago. We never took the $403,000 as a gain on the sale and, as such, have effectively completely reserved for it. Likewise, we have not accrued into our income any interest income on that loan.
Of importance, I note that the promissory note by which Propps promised to pay the $403,000 loan was secured by an alleged mortgage and Assignment of Rents and Profits not from Propps or his corporations, but from the Partnership— the venture.
For the above reasons, I would hold that the preponderance *158of evidence establishes that the consideration of $408,000 was actually based upon anticipated sales of all of the remaining dwelling units planned to be built on Phase II. The S&L required payments of $500 from each of these units as they were sold. I, accordingly, would hold that the transfer was not based upon the market value of the stock but upon speculative anticipation of unit sales from Phase II. It was, therefore, error for the trial judge to hold that the sales was based upon the then present-day market value of the stock.
II.
In addition to holding that the transfer of stock was based upon the market value of the stock, the trial judge held that the alleged sale was “an arm’s-length transaction.” Propps testified that Magrath knew he had no money at the time and, in effect, made him accept the offer set forth in the letter of August 1, 1985. Propps explicitly testified that it was not an arm’s-length transaction. A casual reading of Propps’s testimony of record leads to the conclusion that Propps, when he testified, was mentally confused and uncertain about himself. His answers were contradictory. As between Magrath and Propps, Magrath was obviously the dominant personality. I, therefore, would hold that the preponderance of evidence establishes that the trial judge erred in holding that the alleged sale of the Peoples Joint Venture Group, Inc. was an arm’s-length transaction.
III.
I would hold that the S&L engaged in a joint venture with the Partnership until mid 1988 when it took over the entire venture by permission of the bankruptcy court and under authority of the agreements contained in the alleged mortgage. This becomes evident upon an analysis of: (1) the terms of the various alleged mortgages together with the agreement therein; (2) Assignments of Rents and Profits; (3) the conduct of the parties; and (4) the events which took place subsequent to the sale of the Peoples Joint Venture Group, Inc. on August 9, 1985. This analysis, of course, must be made in the light of the law relating to joint ventures.
I find no South Carolina case setting forth a clear definition of joint adventurers. From the case of Spradley v. Houser, 247 *159S.C. 208, 146 S.E. (2d) 621 (1966), I conclude that the law in South Carolina is that a joint venture exists where there is a combination of two or more persons jointly seeking a profit in some specific venture. Further, in order to constitute a joint enterprise there must be a common purpose and community of interest in the object of the enterprise, and equal right to direct and control the conduct of each with respect thereto. Our Supreme Court has held that where it is asserted that a mortgage is in fact evidence of a joint venture there must be an agreement between the parties for participation in the profits of the project beyond the time when the debt has been discharged. Virginia Hotel v. Dusenberry, 218 S.C. 524, 63 S.E. (2d) 483 (1951).
On October 9, 1985, an alleged loan of $5,100,000 was made to the Partnership by the S&L. The alleged loan was secured by an alleged mortgage which is. the subject matter of the S&L’s cause of action in this case.
I have noted that the security instruments taken by the S&L in these transactions, including the $5,100,000 loan which is the subject of this foreclosure action, were more than mortgages. In South Carolina a mortgage is simply a preassigned lien to secure a specific debt. S.C. Code Ann. § 29-3-10 (1976), originally codified in 1791, provides that a mortgage does not give to the mortgagee a right of entry or possession.1 However, the security instruments taken by the S&L in this case contained the following clause:
ARTICLE V
Additional Rights and Remedies of Lender
Upon the occurrence of a default, Lender, immediately, without notice and without liability therefor to Borrower, except for gross negligence, may do or cause to be *160done any or all of the following: (a) take physical possession of the property; (b) exercise its right to collect the rents and profits derived from the Property; (c) enter into contracts for the completion, repair, or maintenance of the improvements thereon; (d) expend Loan funds and any rents, income and profits derived from the Property for payment of any taxes, assessments, insurance premiums, utility charges or charges for the maintenance or preservation of the improvements on the Property or the lien of this Mortgage; (e) enter into leases demising the Property or any part thereof; (f) take such steps to protect and enforce the specific performance of any promise, condition, or agreement in the Note, this Mortgage, or the Loan Agreement, or to aid the execution of any power herein granted; (g) generally, supervise, manage, and contract with reference to the Property as if the Lender were the equitable owner hereof;... [Emphasis added.]
Although the majority opinion holds that commercial mortgages commonly have provisions providing that in case of default the mortgagee may take physical possession of the property, I find no authority supporting this proposition. To the contrary, I would hold that such a provision is prohibited by S.C. Code Ann. § 29-3-10 (1976) as footnoted and emphasized.
In addition to the above contract to deliver possession and control of the subject property, the S&L required an Assignment of Rents and Profits of the Partnership to the S&L. “Generally, a mortgagee is not entitled to the rents and profits from the mortgaged property as a legal incident to, or as a legal right growing out of his mortgage.” This rule, however, may be modified by agreement of the parties to the mortgage. Sellars v. First Colonial Corp., 276 S.C. 548, 550, 280 S.E. (2d) 805, 806 (1981).
There is of record a disbursement sheet prepared by the S&L entitled, “Myrtle Beach Golf & Yacht Club Loan Analysis.” The disbursement sheet is persuasive evidence which establishes that the S&L was engaged in a joint venture with the Partnership which eventually turned into a sole venture. The disbursement sheet reflects that the funds of the loan were not fully disbursed until November 11, 1986, and further, the disbursement report constitutes a statement of an *161ongoing business which culminated on February 5, 1988. It also reflects that the S&L disbursed large sums of money to itself.
For instance, the disbursement statement reflects that the S&L disbursed to itself more than $800,000 and credited these disbursements to other loans owed to the S&L. Ostensibly the S&L made these transfer payments in order to bring current these other loans. The S&L also paid off the $3,000,000 loan indicated in Magrath’s letter of August 1,1985. Interestingly, the payments of interest and principal on this loan were delinquent at the time. The past-due interest was $95,000. The disbursement statement also establishes that the S&L paid itself over $700,000 in rents and profits from the Partnership. Additionally, the disbursement report reflects that the S&L paid itself a consideration for various sales of property belonging to the venture. The S&L paid $150,000 on a debt of Propps for his corporations. A casual study of the “loan analysis” establishes that the S&L was in complete control of the Partnership’s finances from October 9, 1985 forward and that it continued to invest large sums of money in a losing proposition. After the $5,100,000 alleged loan, the S&L injected, by way of an alleged loan, another $600,000 in the venture.
All of the above confirms two things. First, it consitutes clear preponderance of evidence that regardless of how the S&L characterized the $5,100,000 account it established on the S&L’s books, these funds were an investment by the S&L rather than a mortgage loan.
Second, the disbursement statement confirms what otherwise is apparent from the record. From the start, in letters to state officials and federal officials seeking public largess in terms of road construction and pavement and FHA guarantees of loans, both George Magrath, Jr. and Propps wrote letters in which they stated in plain, unequivocal and unambiguous words that the S&L and Propps, through his corporations, were engaged in a joint venture. The words “joint venture” were used in these letters. Magrath testified they were partners until August 9, 1985, when the stock of the Peoples Joint Venture Group, Inc. was transferred to Propps. The record clearly establishes that the transfer was nothing more than a ploy or ruse and that George Magrath, Jr., acting for the S&L, structured the investment of monies and exercised *162authority over every aspect of the joint venture — both financial and managerial. There is other evidence of record which establishes this by clear preponderance of evidence.
The S&L’s managerial control is illustrated by its continuous financial management of the venture’s business obligations. In 1986, the S&L issued checks directly to Homecraft from which the venture purchased prefabricated houses. It issued other checks directly to Sears & Roebuck and other subcontractors and suppliers. Of course, the normal procedure would have been to make the checks payable jointly to the Partnership and the creditors of the Partnership. The S&L also had direct correspondence with the MBG&YC home owners association regarding its concerns about the project in the Spring of 1986.
Moreover, throughout 1987 the S&L guaranteed payments to subcontractors employed by the Partnership. In fact, the S&L made direct payments to subcontractors of approximately $1,000,000 for debts owed by the Partnership. The S&L also made large advances to Justice, Inc., a parent of MBG&YC.
Beginning in mid 1987, the S&L actively participated in and was directly involved in negotiations and efforts to sell the venture to prospective purchasers.
In August 1988, the S&L obtained permission of the bankruptcy court to operate the golf course. There are many letters of record which reflect the truth of the old adage that “Dreams die hard.” On October 4, 1988, George Magrath, Jr., wrote Kim Scheurenbrand of the Federal Home Loan Bank of Atlanta a letter. I quote in pertinent part.
I have attached a plat of the originally envisioned project. The highlighted area essentially represents raw land. The landowners along with a developer have asked that Peoples consider a proposal. The landowner would gratuitously convey adequate land to Peoples in fee simple to build the remaining nine holes of golf as originally envisioned in the master plan. Peoples would fund the hard construction costs relating to those nine holes and would essentially end up with fee simple ownership of a 27 hole golf course. The land involved would be approximately 80 acres with a value of approximately $15,000 per acre. Ac*163cordingly, land with a value of approximately $1,200,000 would come into the transaction. We would have to fund another $1,000,000 to $1,200,000 in construction costs to complete the remaining nine holes.
The above communication was after the S&L had written down the value of its loan more than $1,000,000 and had additionally set up a $1,000,000 reserve for this loan.
As late as November 1988, after institution of this action, the S&L solicited and received bids to perform road work, patching and road extensions on the project.
In December 1988, the S&L’s officers and agents incorporated Heron Point Golf Club, Inc. to control and manage the golf course located on the venture. Also in November 1988, the S&L arranged for an ABC license for the golf club and management of the club. This was done through a subsidiary, Heron Point Golf Club, Inc.
As late as January 1989, the S&L maintained all of the golf course personnel on its payroll and on September 8,1988, the S&L hired a head golf professional for the venture golf course. The S&L bought golf carts and golf course equipment for the venture.
The record establishes that the S&L took charge of the project, receiving income, entering into contracts for services, employing personnel, and actively participating in the maintenance and operations until a receiver was appointed in February 1989.
Lastly, the $403,000 mortgage was clearly based upon the S&L’s receiving every penny of profit anticipated by the final conclusion of the venture, i.e., the sale of all the projects envisioned by the venture. This clearly establishes that the S&L intended to be paid not only the entire amount of the loan, but also to be paid every penny of profit it anticipated from the completion of the venture.
I would hold that suffused over the entire record of this case is evidence that the S&L and the Partnership had a joint venture with a common purpose which was jointly controlled by Magrath and Propps until Propps left the insolvent business under the exclusive control and management of Magrath, Jr., acting for the S&L. I would hold that from August 9,1985, the S&L and Propps, through his wholly owned corporations, *164had a common purpose and community of interest in the object of the development and disposition of the subject property, and were, accordingly, joint venturers. Spradley v. Houser, 247 S.C. 208, 146 S.E. (2d) 621 (1966). I would reverse the contra ruling of the appealed order.
IV.
I would hold that the trial judge erred in failing to declare the lien of ACDG mortgage superior to that of the S&L’s. A mortgage foreclosure action in South Carolina is equitable and the Court may entertain all questions in issue which are necessary to determine that justice may be done and complete relief be granted as between all the parties before it. Bramlett v. Young, 229 S.C. 519, 93 S.E. (2d) 873 (1956). The Court has the power not only to adjudicate on all issues between the holder of the mortgage sought to be foreclosed and the obligor on the mortgage debt but also “to determine priority, validity, and [;the] extent of the claims of all other parties to the action, and, where the proper foundations have been laid in the pleadings, it is error for the Court not to determine the rights of the various claimants.” 59 C.J.S. Mortgages § 678 (1949). In this case, the S&L’s complaint alleged that its mortgage was superior to that of ACDG, and therefore, the issue was put in the pleadings.
Since I would hold that the S&L was engaged in a joint venture with the Partnership after August 9, 1985, I would hold tht the S&L is liable to ACDG for the indebtedness of the Partnership. I base this holding upon the law that joint ventures are governed by partnership law. See Few v. Few, 239 S.C. 321, 122 S.E. (2d) 829 (1961). S.C. Code Ann. § 33-41-370 (1976) provides that all partners are jointly and severally liable for everything chargeable to the partnership. Since the S&L is a joint venturer with the Partnership, it is liable under partnership law to the ACDG on its note and mortgage. Interestingly, as a corollary holding, the S&L’s mortgage is satisfied because under the law of partnership, the S&L as a joint venturer and/or partner of the Partnership is liable to itself with respect to the mortgage it seeks to foreclose in this action. When a mortgagee purchases mortgaged property, the mortgage interest is merged within the field of the estate and the mortgage debt is extinguished. See Agnew v. Charlotte, *165Columbia and Augusta R.R., 24 S.C. 18 (1885). Similarly, when a debtor and a creditor become the same person, the debt, together with the mortgage by which it is secured, is extinguished. For these reasons, I would hold that the trial judge erred in finding that the S&L is not liable to ACDG under the joint venture theory of lender liability. The law I apply here is a clear example of lender liability when the lender is engaged with the borrower in a joint venture for which the money was borrowed.
V.
I would hold that the trial judge erred in holding that ACDG was either judicially or collaterally estopped to assert its debt against the S&L. In 1987 ACDG, the appellant in this case, instituted an action against the Partnership and obtained a court order enjoining the Partnership from further sales, etc. The parties negotiated a settlement. An inspection of the settlement agreement reveals that the named defendants:
enter into this Stipulation freely, knowingly, and upon the advice of counsel and requests this Court to enter this Stipulation as a Settlement Agreement in order to continue operating Myrtle Beach Golf & Yacht Club without the threat of imminent foreclosure by the Plaintiff ACDG by and through these proceedings while this Stipulation and Settlement Agreement remains in effect, subject to the Defendant’s complete and timely satisfaction of this Agreement in every respect. [Emphasis added.]
Pursuant to that agreement, ACDG agreed to accept a down payment on the indebtedness and a mortgage, junior and subordinate, to the S&L $5,100,000 mortgage which is the subject of this action. As noted, this agreement was based upon a stipulation that it was subject to the Partnership’s compliance with the terms of the agreement, the note and the mortgage. It is important at this time to state that the record shows that the Partnership and Propps did not comply with the terms of the agreement. Compliance with the terms of the agreement, the note and the mortgage constituted a condition subsequent in the settlement agreement. The Partnership and Propps breached this condition subsequent by their default in *166the payment of the installments provided by the note and the mortgage. Because the settlement agreement was subject to the Partnership’s complete and timely satisfaction, we hold that the trial judge erred in holding that ACDG was judicially estopped to assert the counterclaims it asserted. “The estoppel of a consent judgment cannot be extended beyond the scope of the stipulation or the agreement.” 50 C.J.S. Judgments § 705 (1947).
Collateral estoppel, also known as issue preclusion, is a legal theory under which it is held that once an issue is litigated, the parties are collaterally estopped to relitigate the issue which was litigated. The issue of the settlement agreement was not an issue joined by the pleadings nor was it one which was litigated. The settlement agreement was a compromise and not a litigated issue. I, accordingly, would hold that the trial judge erred in holding that ACDG was collaterally estopped to assert the seniority of its lien in this case.
VI.
Waiver is the intentional relinquishment of a known right. See Stovall Bldg. Supplies, Inc. v. Mottet, 305 S.C. 28, 406 S.E. (2d) 176 (Ct. App. 1990). As noted, the settlement agreement contained a provision to the effect that the stipulation and settlement were subject to the Partnership’s complete and timely satisfaction of the agreement in every respect. Accordingly, I would hold that the trial judge erred in holding that ACDG had waived its rights under the settlement agreement.
CONCLUSION
I would hold, as noted, that the preponderance of evidence in this case establishes that the S&L, after October 9, 1985, not only was involved in a joint venture with the Partnership from which it expected to profit $403,000 upon the completion of the sale of all dwelling units envisioned to be sold, but it also enjoyed the exclusive control of the finances of the operation and at least control of the operation itself after August 9, 1985. The scheme that the S&L and Propps hatched in 1984 resulted in the loss of millions upon millions of dollars not only to the S&L, but to other lending institutions and persons. I would hold that the S&L was engaged in a joint venture; a venture which it ultimately took over pursuant to the agree*167ment contained in the purported mortgage-joint venture agreement and the Assignment of Rents and Profits. For these reasons, I would hold that the S&L is liable to ACDG for the indebtedness owed to ACDG and secured by its mortgage. I would further hold that there has been no waiver, collateral estoppel or judicial estoppel, and that the trial judge erred in all of the appealed order which is inconsistent with this dissent.
I, accordingly, would reverse and remand.