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 any thing more for the land than the satisfaction of the old debt secured by mortgage. 168 We think it was incumbent upon the defendant to make it plain that said conveyance of the 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.

A MORTGAGEE MAY PURCHASE FROM HIS MORTGAGOR as freely as any third person: See note to King v. Cushman, 89 Am. Dec. 372, showing that such a conveyance can only be impeached on the ground of fraud. As a general rule the burden of proving fraud in a conveyance is upon him who alleges it: See monographic note to Brown v. Mitchell, 11 Am. St. Rep. 758, discussing the subject. Therefore, a mortgagor and mortgagee may agree that the latter shall be entitled to the property which is subject to the mort.. gage in consideration of his release of the debt. Speaking upon the subject in Watson v. Edwards, 105 Cal. 75, the court said: "Appellant contends that he should have judgment because the original transaction between Sullivan and Clark was, in law, a mortgage, and that its character as a mortgage was not changed, and could not have been changed by the subse quent acts of a surrender of the defeasance, the yielding up of the note, the discharge of the debt, etc; and that in order to make such a transfer valid there must be some new consideration from the mortgagee to the mortgagor. This contention cannot, in our opinion, be successfully maintained. A mortgagor may sell and convey all his right and interest in the mortgaged premises to the mortgagee where the transaction is fair, honest, and without fraud, and where no unconscionable advantage has been taken of his position by the mortgagee. It would be surprising if two men in their senses and with their eyes open could not make such a contract. The doctrine "once a mortgage always a mortgage" does not refer to future contracts. In Washburn on Real Property it is said that the character of a mortgage cannot be changed "by an agreement of the parties made at the time of the execution of the deed," and that "equity will not admit of a mortgagee embarrassing or defeating his right to redeem the estate by any agreement which he may be induced to enter into in order to effect a loan"; but that "this does not preclude any subsequent bona fide agreement in respect to the estate between the parties," and that “the mortgagee may always purchase the mortgagor's right of redemption, and thus acquire an

absolute title": 2 Washburn on Real Property, 5th ed, secs. 23, 24, top pp. 65, 66. Section 2889 of the Civil Code does not change the rule. The case at bar is in principle exactly like the case of Green ▼. Butler, 26 Cal. 595. In that case Justice Sawyer, speaking for the court, after noticing a number of authorities to the point, says: "Independent of authority, no argument is necessary to show that, upon principle, a mortgagor has the same capacity to contract with reference to his interest in the mortgaged premises that he has with reference to any other property."

While it is very important for the court to scrutinize closely all transactions between the mortgagor and the mortgagee touching a sale of the equity of redemption, yet, where such transactions appear to be fair, and supported by a sufficient consideration, they will be upheld. Thus, in an action very much resembling the principal case, in its general features, but differing from it in several important particulars, where the mortgagor was a young man, twenty-nine years of age, whose conduct and declarations for a series of years showed that he knew the difference between a mortgage and an absolute conveyance, and where the evidence showed that he intel. ligently and voluntarily conveyed the mortgaged premises to the mortgagee upon the consideration of the mortgage debt and other indebtedness, the deed of conveyance was sustained: See McHall v. Hall, 41 S. C. 168.

SIMMONS HARDware Company v. Bank of Green

WOOD.

[41 SOUTH CAROLINA, 177.]

NONSUIT.-IN AN ACTION BY THE PAYEE OF A CHECK against the bank on which it is drawn, a nonsuit should not be ordered for want of evi dence of funds on hand if there is some testimony of the existence of sufficient funds to the credit of the drawer's account to meet the check when presented.

BANKS AND BANKING-PASS-BOOK AS EVIDENCE.-The bank or pass book is not always the most reliable evidence of funds in the bank to the drawer's credit when a check is drawn. If the pass-book is not called for in an action by the payee of a check the drawer is a competent witness to prove the amount of such funds where he has knowledge of it.

BANKS AND BANKING-EVIDENCE-IN AN ACTION BY THE PAYEE OF A CHECK the testimony by a depositor and the cashier of the bank as to why two accounts of the depositor were kept separate is properly excluded, as it calls for merely an opinion; but testimony as to the reason for drawing checks on one of these accounts in favor of the other is admissible as explanatory of a fact. BANKS AND BANKING-EVIDENCE-IN AN ACTION BY THE PAYEE OF A CHECK against the bank upon which it is drawn, testimony by the plaintiff's attorney that he had been informed by the cashier that there was money enough in bank to the credit of the account upon which the check was drawn to pay it, and that the witness had so informed his alient before the action was commenced, is competent either on direct or cross examination.

BANKS AND BAKING-ACTION BY PAYER OF CHECK.-The holder of a check

on a bank can maintain an action for the amount specified therein against the bank before it is accepted or certified as good by the bank, if the drawer of the check has funds deposited in the bank to an amount sufficient to meet it when presented for payment.

ONE RADICAL DIFFERENCE BETWEEN A CHECK AND A BILL OF EXCHANGE is that the former need not be accepted, while the latter must be, in order to fix the liability on the drawee.

BANKS AND BANKING-CUSTOM AND USAGE-TWO ACCOUNTS-INDEBTEDNESS.-If the customer of a bank keeps two accounts therein, one a general merchandise account and the other his cotton business account, and the bank long continues the habit of paying all checks drawn on the merchandise account, notwithstanding the constant balances against the drawer on the cotton account, it cannot, without previous notice to the customer, refuse payment of a check drawn by him on funds to his credit on the merchandise account, upon the ground of his indebtedness on the cotton account. TRIAL-OBJECTIONS.-A misstatement of testimony by the judge to the jury, in charging them, must be called to his attention at the time, or be remedied by a motion for a new trial. An exception thereto noted after trial raises no question of law which can be considered on appeal. TRIAL-ERROR CURED BY VERDICT.-In an action by the payee of a check against the bank upon which it is drawn, and where there is a verdict for the whole amount of the check, with interest, the supreme court will not consider an exception to the instructions, imputing error therein as to plaintiff's right to recover in part.

BANKS AND BANKING-ESTOPPEL.-If the holder of a check, relying upon the statements of the officers of the bank on which the check is drawn, is induced to take a course different from that which he otherwise would have taken, and is thereby misled to his prejudice, the doctrine of estoppel applies.

BANKS AND BANKING-CASHIER AS AGENT-ADMISSIONS.-The cashier of a bank is its agent; and his admission as to the existence of funds suffi. cient to pay a check when drawn is binding on the bank.

ACTION by the Simmons Hardware Company against the Bank of Greenwood, on an ordinary check drawn by Jervey & Co. on the defendant, in favor of the plaintiff, for one hundred and sixty-three dollars and ninety-seven cents. The bank kept with Jervey & Co. two separate accounts, as described in the opinion, and drafts were made upon each by a different style of check. The bank contended, after the discovery of the error referred to in the opinion, that there was but one hundred and forty-two dollars and seventy-one cents to the credit of Jervey & Co. on the merchandise account at the time the check was presented, an amount insufficient to pay the check. The trial court charged the jury that the defendant bank was estopped to deny the reality of the state of things which it made appear to exist, and

upon which the plaintiffs were led to rely; and that under the circumstances the plaintiffs, though the action was brought upon the check, might recover the one hundred and forty-two dollars and seventy-one cents, if there was that much money to credit of Jervey & Co. on the merchandise account at the time that the check was presented. The jury found for the plaintiff in the sum of one hundred and seventyeight dollars and fifty-six cents; judgment was entered, and the defendant appealed.

M. P. De Bruhl, for the appellant.

Parker & McGowan, for the appellee.

184 McIVER, C. J. The object of this action was to recover the amount of money mentioned in a check drawn by Jervey & Co. on the 2d of January, 1892, on the defendant bank, payable to the order of the plaintiff. Inasmuch as the plaintiff resided and did business in a distant state, the check was not presented for payment until the 8th of January, 1892, when payment was refused ("no funds”), and on the next day it was formally protested for nonpayment.

Without undertaking to set out the evidence adduced at the trial, which appears in the "case," it is sufficient to state here that there was testimony tending to show that Jervey & Co. were merchants in the town of Greenwood, also engaged in the business of buying and selling cotton; that they had been doing business with the defendant bank for several years, the bank advancing the money to buy the cotton, and taking from Jervey & Co. drafts drawn by them against the cotton so bought; that Jervey & Co. kept two deposit accounts with the bank, one of which is designated as the merchandise account, upon which was credited money aris ing from the sales of merchandise, and upon which checks were drawn to pay for the merchandise bought, and the other designated as the cotton 185 account, upon which the money advanced to buy cotton was charged, and the drafts drawn against the cotton were credited; that the merchandise deposit account was headed "Jervey & Co.," while the cotton deposit account was headed "Jervey & Co., C. A."; that the checks drawn on these two deposit accounts were of a different style, and were signed differently, one being "Jervey & Co.," and the other "Jervey & Co., C. A.," so as to indicate to which of the two accounts they were to be charged; that the merchandise account ran regularly on from year to year,

while the cotton account began and closed with the cotton season, and at the close of the season the balance on the cotton account, which was usually, if not always, against Jervey & Co., was closed by note; that the bank had always previously been in the habit of paying the checks of Jervey & Co. on the merchandise deposit whenever there was money sufficient to the credit of Jervey & Co., without regard to the fact that the balance was against them on the cotton deposit account, or that the bank held their past due notes given to close the previous cotton season's account; that when the check here in question was presented for payment there appeared on the books of the bank a balance on the merchandise account in favor of Jervey & Co., more than sufficient to pay said check, and that the only reason given for refusing payment thereof, was that Jervey & Co. then owed the bank a large balance on the cotton account, besides notes past due to a large amount; that subsequently it was discovered that, owing to an error in the books of the bank, the balance in favor of Jervey & Co. on the merchandise account was, in fact, not sufficient to meet the check, but this discovery was not made until after the check had been protested, and after the commencement of this action.

It seems that at the commencement of the trial a motion was made to dismiss the complaint upon the ground that the facts stated therein were not sufficient to constitute a cause of action, inasmuch as there was no allegation that the check had been accepted by the bank; but this motion was refused, and the trial proceeded. At the close of the testimony on the part of the plaintiff a motion for a nonsuit was made upon two 186 grounds: 1. "Because there was no evidence that there was money enough on deposit in said bank to the credit of Jervey & Co. to pay the check sued on at the time the same was presented "; 2. "Because there was no evidence that the check sued on had been accepted by the defendant bank, or certified by it as good." At the close of the testimony, and the argument of counsel the case went to the jury under the charge of his honor, Judge Izlar, and the ver dict was in favor of the plaintiffs, for the whole amount of the check, with interest; and the defendant appeals upon twenty-seven grounds from the judgment entered upon the verdict.

We shall not undertake to state or consider these numer ous grounds in detail, but will confine ourselves to such ques