Leasing Enters., Inc. v. Livingston

294 S.C. 204, 363 S.E.2d 410 (Ct. App. 1987)

 

RULE:

An instrument purporting to be a mortgage but imperfectly executed by the omission of a seal, or in some other manner, so as to be defective in form is wholly nugatory at law as a valid mortgage or as giving any interest in or claim upon the parcel of land described. Equity, however, not saying that the instrument is a true legal mortgage, declares that it is an efficient agreement to give a mortgage, and as such creates an equitable lien upon the land, valid for all purposes, and as against all parties, except a purchaser of the land for a valuable consideration and without notice.

FACTS:

In 1980, the judgment creditor sold a forklift to the judgment debtor under a lease purchase agreement, based in part upon his representation that he owned an interest in certain land in South Carolina. In 1981, the judgment creditor obtained a foreign judgment against the judgment debtor. In 1983, a quitclaim deed purporting to transfer the judgment debtor's interest in the land to a family member was recorded. In 1984, the judgment creditor sued to domesticate its judgment in South Carolina and to set aside the conveyance. The master set aside the conveyance and the family member appealed.

ISSUE:

Should a conveyance by deed be set aside for failure to have two witnesses?

ANSWER:

Yes

CONCLUSION:

The court affirmed the trial court's judgment, which had granted the judgment creditor's action to set aside a conveyance to the family member. It held that the deed could was not fit for recording because it was only signed by one witness, rather than two as required by S.C. Code Ann. § 27-7-10(1976).

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