Brownlee v. Martin

Citations

• 28 S.C. 364
• 6 S.E. 148
• 1888 S.C. LEXIS 64

Syllabus

<p>1. Whore plaintiff sues for the recovery of land to which he holds the legal title, and defendant answers, alleging that such title was originally intended to operate as a mortgage, which has since been satisfied, the answer raises an equitable defence, and issues arising out of this defence being submitted to the jury, their verdict thereon is only for the enlightenment of the chancellor’s conscience, and is not binding on him. On appeal from his findings overruling the jury, their verdict is without effect in this court.</p> <p>2. There being a conflict of testimony in a chancery case hoard by the Circuit Judge, with the aid of a jury, the findings of fact by the judge, overruling the verdict of the jury, sustained, such findings not being opposed by the great preponderance of the evidence.</p> <p>3. An absolute deed is shown in this case to have Been intended as a mortgage from the terms of a written agreement under seal subsesequently entered into between the parties. But such agreement not being based upon any new consideration, it could not operate to destroy or change the mortgage. The burden of proof is on the mortgagee to show such an effect.</p> <p>Mr. Justice McGowam, dissenting.</p>