Hamilton v. Hamer , 99 S.C. 31 ( 1914 )

September 24, 1914. The opinion of the Court was delivered by This is an action for an accounting between the plaintiff and the defendant, W.M. Hamer, for moneys alleged to have been paid by the plaintiff to the latter at an usurious rate of interest on an alleged mortgage debt; to have a deed, absolute on its face, in conjunction with a contemporaneous written agreement, declared a mortgage; and to compel said defendant, W.M. Hamer, to convey the premises mentioned and described in said deed, to the plaintiff upon being paid the correct amount, if any, after being charged with the penalty of all usurious interest, due to the plaintiff by the defendant. The cause was referred to J.D. McLucas, Esq., master, to hear and determine all issues of law and fact, and report to the Court, who made his report, wherein he held that upon payment of the amount found by him to be due by the plaintiff to the defendant, that the defendant be required to convey to the plaintiff the lands described in the complaint. Exceptions were duly filed to the report of the master, and the cause heard by his Honor, Judge Shipp, who, on August 28, 1909, filed his decree, wherein he overruled and reversed the findings and recommendations of the master and dismissed the complaint; from this decree the plaintiff appeals. The report of the master and the decree of Judge Shipp should be included in the report of the case. The plaintiff's exceptions, except the first, complain of error on the part of his findings of facts and admitting incompetent evidence.

The first exception alleges error in permitting the answer to be amended. The first exception is overruled as the Judge had ample authority under section 224, Civil Proc.Fishburne v. Minott, 72 S.C. 567, 52 S.E. 648;Kennedy v. Hill, 79 S.C. 270, 60 S.E. 689; Bellamy v. Railway, 85 S.C. 450, 67 S.E. 545; Lowry v. Railway, 92 S.C. 40, 75 S.E. 278, to permit the amendment and there was no abuse of that discretion. As to the other exceptions, we will not attempt to treat them separately. The deed from Hamilton to Hamer was absolute on its face, but at the same time it was executed there was a bond to reconvey, which is set out by his Honor, Judge Shipp, in his decree. The papers executed at that time show that the deed from Hamilton to Hamer, though absolute on its face, yet was accompanied by the bond executed at the same time, shows that the deed secured a debt, and was not an absolute sale, but that Hamilton had the right upon payment of the full amount due by him to Hamer to have Hamer reconvey the land to him; and the deed and bond executed at that time between the parties and the conduct and acts of the parties to the transaction show that each acted and construed it not to be an absolute sale, but a conditional sale, and upon payment of amount due by Hamilton to Hamer, Hamer was to reconvey the land to Hamilton. We do not find any usury in the transaction between the parties. The deed and bond themselves show this to be the real agreement between the parties. While we have a deed absolute on its face we have a bond in writing executed at the same time to reconvey upon payment of the amount due. This contract to reconvey was made at the same time the deed of conveyance was executed. The bond gives the plaintiff the right to have the land reconveyed to him by Hamer upon payment of amount due by him to Hamer, and he is entitled to a decree of specific performance for this purpose. This was the real intention of the parties as shown by the writings and sustained by the evidence in the case. The plaintiff is entitled upon the payment by him to the defendant, Hamer, of the full amount agreed by him to be paid to Hamer to have the land reconveyed to him. Dinkins v.Simons, 97 S.C. 261, 81 S.E. 638, and authorities therein cited.

The exceptions are sustained and judgment reversed.

MESSRS. JUSTICES HYDRICK and FRASER concur in the result.