F. Gregorie & Son v. Hamlin

Ness, Justice

(dissenting) :

Concluding that a genuine issue of material fact exists, I would reverse and remand for the taking of testimony.

Respondents Gregorie, et al. brought this action tO' declare a 1961 deed from the late Ferdinand Gregorie, Sr. to appellant Hamlin a mortgage. Appellant denied the deed was intended to be a mortgage, and unequivocally stated in his deposition (Tr. 60) and in his affidavit (Tr. 197) that he “bought” the disputed property in fee simple absolute.

It is well settled that in order to convert an apparent deed into a mortgage, the proof must be clear and convincing. Arnold v. Mattison, 3 Rich. Eq. 153 (1850); Thomas v. Bartell, 261 S. C. 531, 201 S. E. (2d) 243 (1973). Moreover, in order to warrant the granting of summary judgment, no genuine issue of any material fact may exist. The venot v. Commercial Travelers Mutual Accident Association of America, 259 S. C. 235, 191 S. E. (2d) 251 (1972). We recently stated in Lunsford v. McDaniel, S. C., 252 S. E. (2d) 917 (1979), that a motion for summary judgment should only be granted “when it appears from the pleadings, depositions, and affidavits that there is no genuine issue of material fact.” Here, the affidavit and deposition of appellant Hamlin place the construction of the 1961 instrument in direct controversy. Therefore, summary judgment was premature and improper.

I would remand.