The opinion of the court was delivered by
This was an action to have a deed of 484 acres of land declared void and set aside, for alleged imposition, misrepresentations, and fraud, the deed having been made by the plaintiff, a very old lady, being at the time of the trial eighty-two years of age, infirm, illiterate, not being able to write her name, and ignorant of her rights, to the defendant, Harrison H. Hall, her nephew and son-in-law.
The complaint alleged, that in settling the estate of her deceased husband, J. J. Hall, who died intestate, she became indebted to the defendant, H. H. Hall, who was the administrator of the estate, in the sum of $349.70, and to secure the same, gave him a mortgage of the land (484 acres) which had been assigned to her as her part of the lands of her deceased husband, and upon which was her home. This was in 1877; but as soon as the mortgage debt became due (1880), the defendant informed the plaintiff, and made her believe, that her right of redemption under the mortgage was forfeited by reason of the fact that the debt secured thereby was past due, and that he had a right, therefore, to the possession of the land; but if she would sign another paper, she should be allowed time within which to pay the debt. Being thus misled, and not being able to read or write, the plaintiff signed and executed an instrument of writing, which was then and there presented by the defendant, which she has since learned was an absolute deed of conveyance by her to the defendant; that there was no consideration moving between the plaintiff and defendant in the exe*166cution of the said paper other than the mortgage debt and interest, which at that time could not have exceeded the sum of $513, and the said tract of land at that time was reasonably worth the sum of $1,675, &c. The defendant interposed a general denial, and (1) that more than ten years having elapsed since the accrual of any right of action, the plaintiff is barred by the statute of limitations; (2) that more than six years having elapsed, the plaintiff is barred from maintaining any action for rents and profits; and (3) that more than six years having-elapsed, the plaintiff is barred from maintaining any action for fraud, as alleged, &c.
The cause came on for trial by his honor, Judge Witherspoon, who heard the testimony, which is all in the record. The defendant himself was not sworn. His honor, in his decree, among other things, said, that “The plaintiff has failed to sustain the allegation of fraud, and I find as matter of fact that the defendant did not procure the execution of the deed by the plaintiff by means of misrepresentations and deceit. * * * It is claimed that plaintiff was induced to sign the deed through the importunity and on account of representations therein made to her by her son, called Bud Hall; but the evidence does not satisfactorily show that the defendant had knowledge of, or authorized, the statements made to plaintiff by her said son,” &c.; and he dismissed the complaint. From this decree, the plaintiff, after being refused a new trial on the grounds of “surprise” and “after-discovered evidence,” appeals to this court upon numerous exceptions, which are all printed in the “Case;” but from the view which the court takes, it will not be necessary or proper to consider any of them except those numbered 1, 3, and 4, which substantially make but a single point, viz: “Upon whom rests the burden of proof, that the purchase of the equity of redemption by the mortgagee from the mortgagor was a fair transaction for a sufficient consideration1?”
1 The decree itself shows, not only the findings of fact by the Circuit Judge, but, also, that in making’ them, he considered the burden of proof as being upon the plaintiff, for the reason, as we suppose, that the general rule is, that the burden is-upon the actor, who is usually the plaintiff. It *167is the well settled rule of this court not to disturb findings of fact by the Circuit Judge, unless they are manifestly against the weight of the testimony. But that rule does not apply to cases where, in reaching the findings, there was a mistake as to the onus probandi. In such cases error of law enters into the findings, and they may be reviewed as errors of law. See the case of Johnson v. Clarke, 15 S. C., 72, where it was held, that even the concurrent findings of fact by referee and Circuit Judge may be set aside, it appearing that error of law was committed in improperly imposing upon the plaintiff the burden of proof, which should have been placed upon the defendant.
2 Now, this case was one between mortgagor and mortgagee. In such case the mortgagee has a position of influence and power in respect to the mortgagor, especially after condition broken. Under our law, even after the debt is due, the mortgage of land is still but security for the debt, and the mortgagee has duties to perform somewhat in the nature of a quasi trustee. He cannot take possession of the land without foreclosure oran open public sale, and any such agreement inserted in the mortgage itself will beheld void, as being contrary to the very nature of a mortgage. It is true, that a new and independent agreement between the parties, made subsequently to the execution of the mortgage, for a release of the equity of redemption, if made between competent parties, “fairly and for a valuable consideration,” will be sustained. But the Court of Equity scrutinizes transactions of that character very narrowly, and, to be sustained, it must appear that the dealing stands disconnected from the original mortgage contract; and, moreover, that it is in all respects fair, and most especially in a case where the party at disadvantage, the mortgagor, is a very old, feeble, and illiterate lady. See Russell v. Southard, 12 How., 139; Robinson v. Amateur Association, 14 S. C., 152; Brownlee v. Martin, 21 Id., 400; Banker v. Hendricks, 24 Id., 1; and Jones Mort., § 711.
Now, here the defendant was the mortgagee, and obtained a conveyance of the equity of redemption from the feeble old lady, the mortgagor, without paying anything more for the land than the satisfaction of the old debt secured by mortgage. *168We think it ivas incumbent upon the defendant to make it plain that said conveyance of Che equity of redemption, was fairly and, voluntarily given, upon a separate and independent contract of sale, disconnected from the mortgage contract; and that the plaintiff knew the character and effect of the paper she signed, and signed it voluntarily and intelligently. As the case has to go back to the Circuit, we think nothing further should be said now which might seem to prejudge or prejudice it; and, therefore, we will not undertake to express any opinion upon the merits.
The judgment of this court is, that the judgment of the Circuit Court be set aside without prejudice, and that the cause be remanded to the Circuit Court for a new trial, according to the conclusions herein announced.