¶1 I concur in the finding that the deed was not intended as a mortgage; but I think plaintiff is entitled to recover the rental value of the land from the date of her demand for possession thereof. Having held that the land was hers, and that she was entitled to possession thereof, I do not see how the Court can deny her the right to recover the rental value thereof from the date of her demand for possession. No agreement to pay rent was necessary. The law imposes the payment of it as the proper measure of damages for unlawfully withholding *372
the possession from her. She demanded possession in December, 1912, and I think she is entitled to recover the rental value of the land from that time.
¶2 MR. JUSTICE WATTS. I concur, but agree with Mr. Justice Hydrick that plaintiff is entitled to rent as indicated by him.
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Status
Disposition: Reversed
Case posture Disposition Reversed. Posture Before SHIPP, J., Abbeville, October, 1913. Reversed.Action by Beulah Y. Banks against W.H. Frith. Judgment for defendant and plaintiff appeals.
The issues are stated in the opinion of the Court, as follows:
In order to understand this case, it is well to set out the complaint and answer.
The complaint is as follows:
The plaintiff above named, by her attorney, Wm. N. Graydon, complaining of the above named defendant, alleges:
I. That on the twenty-first day of November, 1904, the defendant made, executed, and delivered to the plaintiff, whose maiden name was Yarborough, for and in consideration of the sum of five hundred dollars to him paid by the plaintiff, a deed in fee simple, with general warranty, to the following described tract of land, to wit: `All that tract or parcel of land, situate, lying, and being in Cedar Springs township, Abbeville county, in the State aforesaid, containing one hundred acres, and bounded by lands of J.R. Thornton,
A.K. Watson, Larkin Frith, and others — the same being the east side of my home place upon which my residence is situated.'
II. That this plaintiff, being at that time unmarried, did not demand exclusive possession of said land, but lived on it with the defendant, and continued to reside there the most of the time, until her marriage in June, 1911.
III. That for the year 1912 the said defendant agreed to pay this plaintiff rent for said tract of land, which is reasonably worth two hundred and fifty dollars per year, but said defendant has failed and refused to pay said rent to this plaintiff. That the land of the plaintiff, from which this one hundred acres was cut, consisted of about one hundred and ninety-two and one-half acres, but the line between the defendant and the plaintiff has never been surveyed in accordance with said deed, and, when this plaintiff demanded that said land be run off to her, the defendant would not allow the line to be run north and south, so as to give the plaintiff the land she bought on the east side of said place, but attempted to run said line east and west, which does not give the plaintiff the land she bought.
IV. That this plaintiff has demanded possession of said land, and demanded that the line be run so as to give her the land which she bought, but the defendant has refused to surrender possession of said land, and refused to allow the line to be run, as called for by plaintiff's deed.
V. That this plaintiff has been damaged by wrongful withholding of said land in the sum of two hundred and fifty dollars.
Wherefore, the plaintiff demands judgment against the defendant:
(1) That the Court order that one hundred acres of said land be surveyed by a surveyor appointed by this Court, on the east side of said tract of land, as called for by plaintiff's deed.
(2) That the plaintiff have judgment for the possession of said one hundred acres of land, and two hundred and fifty dollars, her damages for such withholding.
(3) For the sum of two hundred and fifty dollars, rent for the year 1912.
(4) For such other and further relief as to the Court may seem to be just and proper, and for the costs and disbursements of this action.
The answer of the defendant is as follows:
The defendant above named, answering the complaint herein, respectfully shows to the Court:
I. Admits so much of the plaintiff's complaint as alleges the execution of the deed therein described, but he denies the same was in fee simple, or that it was intended thereby to convey to the plaintiff the fee-simple title in the said tract of land. On the other hand, he alleges that the deed was made for the purpose of securing the sum of five hundred ($500.00) dollars, then due the plaintiff by the defendant, and the understanding and agreement of the parties was that the said deed should be held as a mortgage to secure the repayment of the said sum of five hundred ($500.00) dollars, and that, when the said debt was paid, the said deed was to become null and void.
II. The defendant denies each and every other allegation of the plaintiff's complaint.
Further answering this complaint, this defendant alleges:
III. That about November 1, 1904, the defendant herein borrowed from the plaintiff the sum of five hundred ($500.00) dollars, money which she had received from a settlement of her mother's estate, and, in order to secure the repayment thereof, this defendant executed to the plaintiff the deed described in paragraph I of the complaint herein under an agreement by and between the plaintiff and the defendant by which the said deed was to be held simply as a security of the said indebtedness, and this
defendant alleges that it was not intended thereby to convey a fee-simple title to the said tract of land.
IV. The defendant further alleges that since the execution of the said deed he has paid the plaintiff, as interest on the said debt and sum of money and as part payment of the principal, the sum of three hundred seventy-seven and 72-100 ($377.72) dollars, which amount was paid as follows: 1907, forty-four ($44.00) dollars; 1908, forty ($40.00) dollars; 1909, fifty ($50.00) dollars; 1910, forty ($40.00) dollars; 1910, fifteen ($15.00) dollars; 1911, sixty-three ($63.00) dollars; 1912, ninety and 72-100 ($90.72) dollars; 1912, twenty-five ($25.00) dollars. The defendant further alleges that the plaintiff is indebted to him for rent of another tract of land for the year 1912, in the sum of one hundred and twenty-five ($125.00) dollars, which sum he pleads as set-off and counterclaim to the amount due by him to the plaintiff herein.
V. This defendant further alleges that he has offered several times to pay to this plaintiff the balance due her on the said loan, and that he is still ready and willing to pay the same to the plaintiff, but the plaintiff herein, since her marriage, has demanded the possession of the said tract of land described in the complaint, in violation of the agreement between the parties, and that he has refused to give the same to her.
VI. This defendant further alleges that at the date of the execution of the said alleged deed the land described therein was worth at least the sum of two thousand ($2,000.00) dollars, and since the execution thereof neither the plaintiff nor any one for her every ( sic ) paid the taxes thereon or returned the same for taxation, nor rented the same, nor attempted to collect any of the rents thereof, but, in recognition of the said agreement between the parties, the plaintiff herein has held the said deed as a mortgage, and from time to time has collected interest thereon until after her marriage, when, for the first time, she
attempted to violate the said agreement, and attempted to return the said premises for taxation in her own name and get possession of the said premises from the defendant herein, contrary to the agreement between the parties.
Wherefore defendant prays:
(1) That the complaint herein be dismissed with costs.
(2) That the deed described in the complaint be declared to be a mortgage to secure the indebtedness existing at the date of the said deed and thereafter, and that the Court will order an accounting of the amount, if any is due on the said mortgage debt, to the end that the defendant herein may pay the same to the plaintiff, and that the said deed be delivered up upon the said payment for cancellation.
(3) That defendant herein have any other relief as to the Court seems equitable and just.
All issues of law and fact were referred to R.E. Hill, Esq., master for Abbeville county, who found for the plaintiff on all issues except as to rent. The cause was heard on Circuit by Judge Shipp, who reversed the findings of the master, and found that the deed set up in the pleadings was a mortgage, and ordered foreclosure. From this judgment the plaintiff appealed on twenty-two exceptions. These exceptions raise but two questions: (1) Was the deed a mortgage? (2) Is appellant entitled to rent? Source: CourtListener
