Brown v. Bank of Sumter

1. Appeal. — This Court on appeal cannot consider any fact not properly before the Circuit Court, even when agreed to by counsel. 2. Mortgages — Presumption—Rebuttal—Sale.—A Deed appearing on its face to be an absolute sale will be presumed to be what it appears to be, unless such presumption be rebutted by clear, unequivocal, and convincing proof. 3. Mortgages — Sale—Evidence.—Whether a transaction was intended as a mortgage or as an absolute sale, with agreement allowing vendor to repurchase, depends upon the intention of the parties as shown upon the face of the writings, or by extrinsic evidence. 4. Pleadings — Demurrer—Answer—Defense.—Where a Complaint alleges that a deed absolute on its face was intended as a mortgage, the answer denying this and alleging the contrary is not amenable to demurrer on the ground that it does not state facts sufficient to constitute a defense. 5. Mortgages — Mortgagor and Mortgagee — Sale.—No Consideration other than the mortgage debt is necessary to sustain a sale of mortgaged lands or part thereof by mortgagor to mortgagee at price less than mortgage debt. 6. Ibid. — Sale—Evidence.—A provision in an absolute deed in consideration of the mortgage debt, that the original mortgages are left open to protect grantee against encumbrances and dower, does not show that deed was intended as a mortgage, but the contrary. 7. Sale — Evidence.—The Deed and agreement to sell to grantor, when taken together, show that the deed was intended as an absolute conveyance, with privilege of repurchase by grantors at specific prices. 8. Ibid. — Ibid.—Power of Attorney — -Words and Phrases. — The terms used in the power of attorney, under which deed in question was executed, show that the intention of grantor was to sell, and not to mortgage. The words “dispose of,” held not to include the power to mortgage.

Before Watts, J., Sumter, June, 1898. Action to declare a deed a mortgage by Lilie H. Brown and Robert O. Purdy, as trustees and representatives of Albertus S. Brown and W. Alston Brown, individually and as surviving partner of A. S. and W. A. Brown, against The, Bank of Sumter and Marion Moise, on'the following complaint : I. That the defendant, the Bank of Sumter, is a corporation duly created under and by the laws of the State of South Carolina. II. That at the times hereinafter mentioned the plaintiffs were and now are, for the purposes of liquidation, corporators doing business under the firm name of A. S. & W. A. Brown. III. That the defendant, Marion Moise, was at the times hereinafter mentioned and now is one of the directors and vice-president of the corporation, the Bank of Sumter. IV. That on the 26th day of March, 1895, the plaintiffs, under their firm name of A. S. & W. A. Brown, by their notes discounted in said bank or otherwise, were indebted to the Bank of Sumter in a considerable sum, the items of which they are unable to- state, amounting to $13,500, and claimed by said bank to- be $14,500; that said indebtedness was secured by several mortgages, to wit: one of the “Providence Place,” the individual property of A. S. Brown; one of the “DuBose Land,” the joint property of Albertus S. Brown and W. Alston Brown; one of the “Rocky Pine” place, the individual property of W. Alston Brown; one of the interest of Albertus S. Brown in certain lots of land in the city of Sumter, and a mortgage given by the said Albertus S. Brown to W. F. B. Haynsworth, and assigned to said bank. V. That the said A. S. & W. A. Brown, as copartners, being thus indebted to the said the Bank of Sumter and heavily indebted to other creditors of the said firm on the 26th day of March, 1895, and being desirous of securing said bank with their property above referred to, and on conditions hereinafter stated, executed a conveyance to the said the Bank of Sumter of the following described lands: 1. Those two parcels of land known as DuBose land, &c. 2. All that tract of land of the individual property of W. Alston Brown, known as “Rocky Pine” place, &c. 3. All that tract of land known as the “Providence Place” of Albertus S. Brown, &c. 4. All the right, title and interest which Albertus S. Brown has in and to all of that lot or parcel of land in the city of Sumter, containing forty-five acres, &c. The consideration mentioned in the deed was $10,000, but said land was conveyed and held as security for the whole indebtedness of the said A. S. & W. A. Brown to the said the Bank of Sumter, and by the express terms of the said conveyance the said mortgages above referred to were not satisfied, but were left open h> protect the grantee and its successors and assigns against all incumbrances and dower. VI. That on the same day, to wit: on the 26th day of March, 1895, the defendant, the Bank of Sumter, executed a written agreement under the seal of the corporation, through W. F. B. Haynsworth, its president, and through W. F. Rhame, its cashier, and by authority of the same as follows, to wit: On the 26th day of March, 1895, the same as the date hereof, Albertus S. Brown and W. Alston Brown conveyed to the Bank of Sumter the following parcels of land, viz: 1. Those two parcels of land, each containing 136 1-2 acres, making one entire tract known as the “DuBose Land,” the same having been owned by the grantors together. 2. A tract known as the “Rocky Pine” place, the individual property of W. A. Brown, containing 520 acres, more or less. 3. A tract of land known as the “Providence Place” of Albertus S. Brown, containing 1,075 acres, more or less. 4- All the right, title and interest of Albertus S. Brown in forty-five acres of land in the city of Sumter, S. C. * * * At the same time as aforesaid, the said Albertus S. Brown delivered and indorsed to the Bank of Sumter $2,000 of a note made to him by Brown, Cuttino & Delgar, dated January 18, 1895, for $2,500, due. January 1st, 1896, with interest at seven per cent. And the said Albertus S. Brown and W. Alston Brown, as copartners as A. S. & W. A. Brown, are largely indebted unto the Bank of Sumter, and they are contemplating making a deed of assignment for the benefit of their creditors, and the said Albertus S. Brown holds a rent obligation for the year 1895 against Scarborough & Raffield, payable in cotton, fifteen bales of which has been assigned to the Bank of Sumter, as well as all the rent for 1895 on the “DuBose Land” and “Rocky Pine” place. Now, it is agreed by the Bank of Sumter as follows, in consideration of all the matters aforesaid, viz: 1. That the sum of $10,000 is to be entered as a credit as of this date upon the indebtedness of said A. S. & W. A. Brown to the Bank of Sumter for the lands so conveyed as of this date. 2. That the proceeds of the said fifteen bales of cotton and the rents from the said two- places shall when realized be entered as a credit upon said indebtedness of A. S. & W. A. Brown to said Bank of Sumter. 3. That when the said $2,000 and interest is paid on the note of Brown, Cuttino & Delgar, the same shall be entered as a credit upon the said indebtedness of A. S. & W. A. Brown to the said bank, and when it is paid, the Bank of Sumter is to release, satisfy and discharge a mortgage made by the said Albertus S. Brown and W. Alston Brown to W. F. B. Haynsworth, dated the 8th day of December, 1893, and now held by the Bank of Sumter; the said mortgage covering the store and lot of land at the corner of Main and Liberty streets, in the city of Sumter, S. C, now occupied by Brown, Cuttino & Delgar. 4. That the Bank of Sumter is to participate in the assignment to be made by A. S. & W. A. Brown, to the amount of $2,000, of its claims against them, and apply any dividends to be received to the credit of their indebtedness to the bank, after deducting all costs and expenses. 5. That the said Albertus S. Brown and W. Alston Brown, or either of them, and the heirs, executors or administrators of either of them, may at any time, as long as the same may be owned by the Bank of Sumter, purchase all the real estate so- conveyed as aforesaid from the bank, at a sum equal to their present indebtedness to the bank (before any of said credits hereinbefore mentioned were applied), .with interest, and taxes and all costs and expenses added, the bank to allow credit for everything received in the meantime; and as long as the same is owned by the bank, it will convey any of said property to the said Albertus S. Brown or W. Alston Brown, the heirs, executors or administrators of either of them, at the following sums respectively, adding interest as if said credits had not been made, taxes, costs and expenses, and giving credit for rents and profits received and payments made, if any, viz: the “Providence Place” at $8,000; the “DuBose lands” at $1,500,and the “Rocky Pine” place at $2,000, and the interest of Albertus-S. Brown in the lots of land in the city of Sumter at $1,000. That should none of said lands be so purchased, the Bank of Sumter, in any event, agrees to pay to the said Albertus S. Brown, or his heirs, executors or administrators, as to the land conveyed by him; and to W. Alston Brown, his heirs, executors or administrators, as to the land conveyed by .him; and toAlbertus S. Brown and W. Alston Brown, their heirs, executors or administrators, as to the land conveyed by them, any sum or sums of money that it may realize from a.sale or sales of said land in excess of their indebtedness to- the bank, as aforesaid, giving credit for rents and profits and income, and price or prices realized from lands, and deducting their indebtedness, interest, taxes, and all expenses. The interest referred to in this agreement, which the Bank of Sumter is to be entitled, is to be on the indebtedness above specified and detailed, as if the said credits had not been made, calculated with quarterly or quarter yearly rests, at the rate of eight per centum per annum on the principal and interest when due, said expenses to include attorneys’ fees paid by or charged to the Bank of Sumter, aforesaid. In witness whereof the Bank of Sumter has by its president and cashier, and under its seal, signed, sealed and delivered this agreement. (Signed) the Bank of Sumter, per W. F. B.' Haynsworth, president; and per W. F. Rhame, cashier, [l. s.] Signed, sealed and delivered in presence of (the words “as if said credit had not been made,” and the words and figures at $1,500 and at $2,000 first interlined, and the words and figures each at “$1,500” quarterly first interlined) G. D. Ricker. VII. That the said conveyance and agreement, executed on the 26th day of March, 1895, constitute a mortgage to secure the indebtedness of the plaintiffs to the defendants, the Bank of Sumter; and if the Court shall hold that a power of sale is conferred on the mortgagee by said instruments, these plaintiffs allege that the amount of the debt has not been established by a Court of competent 'jurisdiction, nor has the amount of the debt been consented to in writing by the debtor subsequent to the maturity of the debt. VIII. That the said $2,000 of the note of Brown, Cuttino & Delgar, referred to in said agreement, has been paid tO' the said Bank of Sumter, and the mortgage to W. F. B. Haynsworth given up. IX. That the said A. S. & W. A. Brown exeucted a deed of assignment on the 28th day of March, 1895, in which Moultrie R. Wilson was appointed assignee, and I. C. Strauss was made agent of creditors, and the said the Bank of Sumter duly executed and filed an acceptance of its terms and a release of $2,000 of their debts, and said acceptance and release extinguished $2,000 of said indebtedness, and the same is no longer a charge upon the mortgaged premises or against these plaintiffs. X. That the defendant, the Bank of Sumter, received as rent on said lands for the year 1895 the sum of $1,132, and as rent on said land for the year 1896 the sum of $1,180, as plaintiffs are informed and believe. XI. They allege on information and belief that on the 5th day of November, 1896, the Bank of Sumter conveyed to its codefendant, Marion Moise, the four parcels of land above described by a deed, in which the consideration was alleged to be $12,000. That for some time previous to the said last mentioned conveyance, negotiations had been going on with H. T. Edens for a sale of the “Providence Place” at and for a consideration of $10,000; that the defendant, Marion Moise, had notice of the terms and conditions on which the said the Bank of Sumter held title to said land; that on the 10th day of November, 1896, the said Marion Moise conveyed said “Providence Place” to the said H. T. Edens for the sum of $10,000, and the said Marion Moise still holds the other three parcels of land, claiming them as his own. ■ XII. These plaintiffs allege that the sums of money paid to the said the Bank of Sumter and Marion Moise, has paid all the said indebtedness of the said A. S. & W. A. Brown to the said Bank of Sumter, and said debt, secured by the said mortgage, is paid in full and said mortgage is satisfied. But if any amount is found due thereon, these plaintiffs are ready to pay the same. Wherefore the plaintiffs demand judgment. 1. That said conveyance and agreement may be adjudged a mortgage. 2. That the defendant, the Bank of Sumter, may establish its mortgage debt and account for the rents and profits of said several parcels of land. 3.' That if said mortgage debt has been paid, this Court shall order that the said Marion Moise shall reconvey to the plaintiffs, according to their respective rights, the several parcels of land held by him; and if any portion of the mortgage debt remains unpaid, that these plaintiffs may be allowed to pay the same, or.in default thereof that the same shall be sold by the master and the proceeds applied to the mortgage debt, and any portion not thus sold be conveyed to the plaintiffs. 4. If the Court shall hold that the conveyance made to the defendant, Marion Moise, is a valid conveyance, then that the said the Bank of Sumter shall account for and pay over to the plaintiffs any amount it may be found to have received over the mortgage debt. 5. That the plaintiffs may have such other and further relief as to the Court may seem just, and for their costs. Defendants filed the following answers: The defendant, the Bank of Sumter, answering the complaint herein, admits the allegations to' be true which are contained in the paragraphs of the complaint designated I., II., III., VL, VIII., and all of paragraph IV., except the allegation therein contained that the plaintiffs were indebted to the Bank of Sumter at the time alleged only in the sum of $13,500. This defendant, on information received from its cashier and belief, alleges that at that time the indebtedness of the plaintiffs to this defendant amounted to the sum of $14,500, and was secured by the mortgages referred to in said paragraph IV. This defendant admits the allegations in paragraph V., except the allegation therein that the land therein referred to “was conveyed and held as security for the whole indebtedness of the said A. S. & W. A. Brown to the said the Bank of Sumter,” which allegation this defendant denies, and alleges to the contrary thereof that the said conveyance was not intended or accepted by this defendant as or to be a security for said indebtedness; but was regarded and accepted by this defendant as a bona -fide sale and conveyance to this defendant of said lands in fee simple absolute. This defendant admits the truth of the allegations in paragraph VII. of the complaint, except the allegations therein, “that the said conveyance and agreement, executed on the 26th day of March, 1895, constituted a mortgage to secure the indebtedness of the plaintiffs to the defendant, the Bank of Sumter,” which allegation this defendant denies. This defendant admits that, as stated in paragraph IX. of the complaint, the said A. S. & W. A. Brown executed a deed of assignment; and that in compliance, with a clause of the agreement set out in the complaint in paragraph VI., this defendant participated in the assignment by presenting a claim for $2,000 against the assigned estate. But this defendant alleges that by the express terms of said agreement only the dividends to be received therefrom were to be applied to the credit of the indebtedness o.f the plaintiffs tO' this defendant, after deducting all costs and expenses, and this defendant denies that $2,000 of said indebtedness was thereby extinguished, and denies that the said $2,000 is, as alleged in paragraph IX., no longer a charge upon the mortgaged premises against the plaintiffs. This defendant alleges, upon information and belief, that only about the sum of $136.66 has been received by this defendant as dividends from the said assigned estate. This defendant denies, on information and belief, that the sum of money alleged in paragraph X. of the complaint to have been received by this defendant for rents of said lands, were received. This defendant, on information and belief (having been so informed by its cashier), alleges that the rents received for said lands were smaller than the sums stated in said paragraph X. This defendant, on information and belief (having been so informed by its cashier), denies that the amount of the proceeds of the sale by this defendant of the said lands and of the rents and dividends received by this defendant, and of the $2,000 on the note of Brown, Cuttino & Delgar, referred to in complaint, did altogether equal the amount of the indebtedness of the plaintiffs to this defendant. The defendant, Marion Moise, by his answer, which is hereby amended as of course, answering the complaint herein: I. Denies each and every allegation of the same, except such as may be hereinafter admitted. II. The said defendant, further answering- said complaint, admits the allegations contained in paragraphs numbered I., II., III., VI., VIII., and all of paragraph IV., except the allegation therein contained to the effect that the plaintiffs were onlyindebted to the Bank of Sumter at the time alleged in the sum of $13,500; this defendant alleges, on information and belief, that the said plaintiffs were indebted to the said bank at that time in the sum of $14,500; and this defendant admits all of paragraph V., except the allegation therein contained to the effect that the conveyance referred to was taken and held by the bank as security for the whole indebtedness of the plaintiffs to the bank, which statement this defendant alleges to be untrue; and this defendant admits all of paragraph XI., except so much of the allegations therein contained as alleges that for some time previous to the execution of the conveyance by the plaintiffs to the bank, negotiations had been pending with one H. T. Edens for a sale of the Providence place; this defendant admits all of paragraph numbered VII., except the allegation to the effect that the conveyance and agreement therein referred to constituted a mortgage; and this defendant, answering paragraph IX. of said complaint, admits that the plaintiffs executed a deed of assignment as therein alleged, but he alleges that the bank has only received a dividend, as he is informed and believes, of about eight and one-third per cent., amounting to about $166.66; and he denies that the balance of the amount proven against said assigned estate has been extinguished; but on the contrary he alleges that the balance of said debt is a valid and subsisting obligation due to the bank by the plaintiffs, and that the plaintiffs are not entitled to a credit of $2,000 as alleged; this defendant admits that the consideration expressed in his deed to H. T. Edens is $10,000, but he alleges that the true consideration of said deed was an' exchange of the Providence place for a tract of land in Marlboro County, and that the consideration actually received was considerably less than that expressed in said deed. III. This defendant alleges that the conveyance by the plaintiffs to the Bank of Sumter, referred to in paragraph V. of the complaint, represents a bona fide sale and conveyance of all the premises described therein in fee simple absolute to the bank; that at the time of said conveyance the said bank held bona fide mortgages executed by the plaintiffs to the bank, covering all of the lands described in said conveyance, and in addition thereto one of the mortgages executed by the plaintiffs to W. F. B. Haynsworth for' the benefit of the bank, covering the store house and lot in the city of Sumter then occupied by Brown, Cuttino & Delgar. This defendant alleges that it was expressly agreed that said city lot should not be sold and conveyed to the bank, but that the bank should release and satisfy its mortgage aforesaid upon said lot of land upon the payment to it of the sum of $2,000 and interest from the day of the date of said conveyance; that the negotiations and sale by the plaintiffs to the ba'nk were conducted with this defendant, and it was not intimated nor contemplated by either of the said parties that the bank was taking a security for a debt, but, on the contrary, it was expressly understood that the bank was making a bona fide purchase, and to that end the liens of the various mortgages covering the lands described in said deed were left open to perfect the title against dower and all other encumbrances, and thereby make said conveyance effectual. IV. This defendant alleges that in the fall of 1895, the said bank received an offer of purchase for the Providence place, and as a courtesy to the plaintiff, A. S. Brown, notified him of the intended sale; whereupon he asked an option on the place, which the bark granted, and subsequently lost the sale by reason of the urgent request of the said A. S. Brown to the bank to hold the property until he, A. S. Brown, could realize the money with which to make the purchase; that in the spring of 1896, the plaintiff, A. S. Brown, made an offer of purchase to the bank of $1,000 for the interest he had conveyed the bank in a lot of land in the northwest section of the city covered by the deed aforesaid, but the bank declined to make the sale because the said A. S. Brown offered ten shares of the capital stock of said bank in payment instead of the money, which the bank did not think proper to accept, as it was not buying up its own stock; that on the 13th day of August, 1897, the plaintiff W. A. Brown, requested this defendant to sell him a portion of the “Rocky Pine Place,” but the offer was declined because the defendant was unwilling to sell the part wanted, for the reason that the sale of that portion of the premises would have rendered the balance of the tract unremunerative. V. This defendant alleges that his principal reason for purchasing the real estate from the bank was to rid it of that class of property, which the bank "did not want, could not manage and could not make yield eight per cent, net income without making larg'e expenditures in ditching and draining the land and erecting tenant houses. That all of the tenants on the Rocky Pine and DuBose tracts had notified the bank that they could not continue to rent the premises unless new houses were erected, as all of the old ones were in a dilapidated condition. This defendant alleges that the city lot was at the time of the purchase by the bank and still continues to be unimproved and unremunerative. ' This defendant further alleges that in 1895 the tenants upon the Providence place notified the bank that it would be necessary to expend a large sum of money to ditch and drain the plantation, as it was then unhealthy by reason of the lack of proper drainage, which was causing much sickness at the time. VI. This defendant alleges that he purchased the property referred to, believing at the time that he was receiving a good title in fee simple; that he has expended considerable sums of money in ditching and draining the lands and building tenant houses upon the DuBose and Rocky Pine places, believing that his title thereto was good in fee, and that he is entitled to be fully reimbursed for such expenditures in case the Court should hold that the bank is liable to an accounting to the plaintiffs. This defendant further alleges that he has seen and talked with the plaintiffs frequently since he purchased said property, and that neither of them either said or intimated in any way that his title was not good in fee simple to the premises, but, on the contrary, they stood by and saw this defendant erect improvements upon said property, and have made offers of purchase of the property aforesaid. After argument upon demurrers interposed by plaintiffs to defendants’ answers, the Circuit Judge made the following order: Upon hearing the complaint in this action, and the answers of the defendants and the demurrers of the plaintiffs to said answers, and upon arguments of counsel, it is ordered, upon motion of Haynsworth & Haynsworth and Lee & Moise, defendant’s attorneys, that said demurrer be and the .same is hereby ordered overruled, amongst other reasons, because it appears from the pleadings that the deed of 26th March, 1895, was not a mortgage, but an absolute conveyance, fairly, intelligently and voluntarily made 'by the plaintiffs themselves for a consideration fixed by themselves, and it was a transaction disconnected with the mortgage contract. From this order plaintiffs appeal on the following exceptions : I. Because his Honor erred in holding that “it appeared from the pleadings that the deed of 26th March, 1895 was not a mortgage but was an absolute deed,” in that a. When said answers admitted that the relation of mortgagor and mortgagee originally existed between the parties and alleged no new consideration, it admitted that the new deed is a mortgage, b. When said answers admitted the provisions of the deed of 26th March, 1895, keeping alive the mortgages previously executed, they therebv admitted that said deed was a mortgage. II. Because his Honor erred in not construing the agreement of 26th March, 1895, in connection with the deed of 26th March, 1895, and in construing the two as one, in not holding that said deed and agreement constituted a mortgage. III. Because his Honor erred in not holding that when the answer of the bank admitted that said bank accepted the terms of the deed of assignment executed by A. S. & W. A. Brown, filed its release and accepted its pro rata, it thereby admitted that $2,000 of its debt was extinguished. IV. Because his Honor erred in not holding that when the answer of the defendant, Marion Moise, admitted that he was vice-president and director of the corporation, the Bank of Sumter, and had knowledge of all the facts connected with the deed and agreement, it thereby admitted that said defendant could hold no title against said bank or the Browns. V. Because his Honor erred in not sustaining the demurrer of the plaintiffs to the counterclaim of the defendant, Marion Moise, for betterments, in that: a. 'Said counter-claim does not state the value of said improvements, as required by the statute, b. Because the said answer does not allege that the owners of said land neglected to fulfill on their part the contract under which the defendant entered upon said lands. VI. Because his Honor erred in holding “it appears from the pleadings that the deed of 26th March, 1895, was not a mortgage, but an absolute conveyance, fairly, intelligently and voluntarily made by the plaintiffs themselves for a consideration fixed by themselves, and it was a transaction disconnected with the mortgage contract,” in that there was no allegation in any of the pleadings to support said finding, and no evidence at all before the Court. cite: The dealings originated in mortgages, and there was no new consideration: 21 S. C., 400; 28 S. C., 371; 41 S. C, 167; 31 S. C., 281; 50 S. C, 178; 12 How. (U. S.), 139; 34 S. C., 80; McM. Eq., 3. A director and vice-president of the bank- cannot hold the title as against the bank and its creditors: 41 S. C., 167; 18 S. E. R., 669; 16 S. C., 589; 4 Rich. Eq., 167; 1 S. C., 184; 7 S. C., 200. The effect of the acceptance of the assignment and the receipt of its pro rata is to discharge $2,000 of the firm debt: 43 S. C, 10; 45 S. C., 610; 38 S. C., 428; 12 Pet., *199; 24 S. C., 497. Mortgagee taking absolute conveyance of mortgaged lands assumes burden of proof that conveyance was intended as absolute sale: 41 S. C., 166; 45 S. C., 41; 21 S. C., 400. In like cases extrinsic parol evidence is admissable to shozv the real situation of the parties: 21 S. C., 392; 46 S. C., 229, 411. "Dispose of” includes transfer by mortgage: 99 U. S., 61. When answer does not show, counter-claim or defense, it is demurrable29 S. C., 286; 32 S. C, 243; 30 S. C, in, 167. cite: As to conveyance by mortgagor to mortgagee: 41 S. C, 163; 21 S. C., 400; 24 S. C, x; 14 S. C, 152. As to the provision in the deed that the mortgages should remain open to protect against all encumbrances and dozver: 24 S. C., 18. cites: No appeal from Judge’s reasons: 24 S. G, 478; 16 S. C., 619. Answers were not demurrable: Code, 170, 174. The intention of the parties must be gathered from the writings and surrounding circumstances: 16 S. C., 337; 1 Mass., 297; 8 Rich., 35: 13 S. C, 332; 31 S. C., 276; 41 S. C, 168; 28 S. C, 364; 11 Rich. Eq., 582; 22 Mich., 377; 1 R. & M., 506; 2 Ball & Beatt, 278; 4 Munf., 140; 2 Caines (N. Y.), 124. If the debt was extinguished by a fair agreement, and the grantor given privilege of refunding, it is conditional sale: 6 Paige, N. Y., 480; 8 lb., 243; 2 Barb., 28. Grantor who neglects to perform conditions will not be relieved: 19 la., 335; 47 Barb., 220; 56 lb., 97; 2 Laus., N. Y., 249; 7 Cranch, 218. As to evidence necessary to show deed was intended as mortgage: 41 Cal., 22; 80 Ill., 188; 10 Cal., 197; 7 la., 114. Rights of parties to such, sales: 33 Vt., 125; 2 Cranch, 218; 14 Pick., 467; 16 N. J. Eq., 189; 2 Edw., N. Y. Ch., 143. Agreement in deed to sell to grantor does not make, it a mortgage: 19 Wend., 518; 7 Conn., 143; 26 Mass., 184. Presumption is that deed is what it purports to be: 52 S. G, 55; 41 S. C., 169. Purchase of mortgage premises by mortgagee extinguishes the debt: 20 S. C., 558; 17 S. G, 503; 26 S. C., 401. Covenant in the deed intended to leave open mortgages only to protect title of grantee: 24 S. C, 18. Instances where declarations by grantor that he “owned” no lands, or that he had "sold” his lands, held to evidence a sale and not a mortgage: 45 S. C, 614; 50 S. G, 169; 52 S. G, 54-