Navassa Guano Co. v. Richardson

Citations

• 26 S.C. 401
• 2 S.E. 307
• 1887 S.C. LEXIS 55

Syllabus

<p>1. It is well settled that since the act of 1791 (5 Stat., 169) a mortgage, is not a conveyance of any estate, except where the mortgagor shall be out of possession, but is simply a lien to secure the payment of a debt: ;-</p> <p>2. The act of 1797 (5 Stat., 311), which gives to releases of the equity of redemption by a mortgagor the same force and effect as if the act of 1791 had not been passed, was not intended' to repeal the act of 1791, nor to restore a mortgage in such case to its common law operation of conveying the legal title, but simply gave to such a release the effect of a conveyance. The same result follows from section 2299 of the General Statutes.</p> <p>3. ITence, where a mortgagee takes a release of the equity of redemption, his legal title is acquired at the time of such release, and does not relate back to the date of the mortgage.</p> <p>4. A release of the equity of redemption has all 'the essentials of a deed of conveyance, and the act of 1797 makes it effectual as such.</p> <p>5. Since .1791 the equity of redemption means, in this State, the legal title remaining in the mortgagor, which may be levied and sold under execution, or transferred by deed of conveyance.</p> <p>6. Whether a release of the equity of redemption, properly construed, discloses an intention to keep the mortgage open for the protection of the mortgagee, is a matter for the court; and whether such intention otherwise existed, was a question of fact to be submitted to the jury. This case distinguished from Agnew v. Railroad Company, 24 S. C., 18.</p> <p>7. After the execution and delivery of a mortgage, judgment was ob- ■ tained against the mortgagor, after which the mortgagee took from the mortgagor a conveyance of the equity of redemption. The judgment creditor then levied, sold, and purchased the land. Held, .that the mortgage was satisfied, and the conveyance to the mortgagee was subject to the then existing judgment lien; and therefore the purchaser at sheriff’s sale