Citation Numbers: 46 S.E. 555, 68 S.C. 102, 1904 S.C. LEXIS 6
Judges: Woods
Filed Date: 1/18/1904
Status: Precedential
Modified Date: 10/19/2024
January 18, 1904. The opinion of the Court was delivered by The defendant sets up as one of his defenses to the plaintiff's complaint for dower, filed in the probate court for Saluda County, that in 1891, S.H. Rudd, his grantor, who was the real owner of the land, and her husband, C.F. Rudd, made a deed of conveyance covering the land described in the complaint to Berry Glenn, Jr., plaintiff's husband, who contemporaneously executed a mortgage to S.H. Rudd and her husband for the purchase money, upon which plaintiff renounced her right of dower; that Berry Glenn, Jr., being unable to pay the mortgage, reconveyed the land to S.H. Rudd, and that "at the time Berry Glenn, Jr., conveyed said premises unto the said S.H. Rudd, it was expressly stipulated and agreed by and between the said parties that the mortgage that was executed by Berry Glenn, Jr., to said S.H. Rudd and C.F. Rudd to secure the payment of the purchase money of said premises as aforesaid, should stand open to protect S.H. Rudd from dower and other liens and incumbrances thereon, and the defendant avers that said mortgage was not extinguished but still stands open and if plaintiff ever had any right of dower in said premises (which this defendant again specifically denies), the same is subordinate to the said mortgage." The plaintiff demurred to this defense, "for the reason that it is not alleged that said agreement and stipulation was in writing and contained in the deed from Berry Glenn, Jr., to Mrs. S.H. Rudd in the form of a Covenant." The demurrer was sustained by the probate judge, and on appeal to the Circuit Judge, his judgment was affirmed.
There are a number of exceptions, but the decisive question is, whether an agreement that a mortgage shall not be merged in the title and be satisfied when the mortgagee takes title to the mortgaged property is without effect, unless reduced to writing and incorporated in the deed of conveyance.
In the leading case of Agnew v. R.R. Co.
The view taken in the cases above referred to, that an express contract is necessary under all circumstances to prevent satisfaction of the mortgage by conveyance to the mortgagee, seems to be at variance with that adopted in most other jurisdictions, and, indeed, not in accordance with the authorities cited with approval in the leading opinion inAgnew v. R.R. Co. Even in those States where, as in this State, the mortgagee has not title to the land, but merely a lien for the debt, it has been generally held that a merger will not result from conveyance of the land to the mortgagee, *Page 105
where there is an intervening incumbrance, even where there is no evidence of any agreement to that effect, because, unless there is actual proof of an intention to satisfy the mortgage, it is presumed the mortgagee does not intend to release his security when it is necessary for his protection against such intervening incumbrance. Scrivner v. Dietz
(Cal.),
This view of merger seems to receive support from the opinions of this Court in Michalson v. Myrick,
The judgment of this Court is, that the judgment of the Circuit Court be reversed. *Page 106