The prices and considerations herein named are based upon actual acreage, and each of said parties shall have the right to survey the lands above referred to, and any excess or shortage in acreage over or under the acreage stated in the deeds to be paid for, or deducted, at the rates herein. Surveys under this contract are to be made within ninety days from the date hereof; otherwise the acreage stated is to stand.

L. D. Jennings and W. A. Bowman having agreed to sell a part of the land above referred to to H. T. Edens, and the lands so bargained to be sold to H. T. Edens being allotted to W. A. Bowman, L. D. Jennings herein assigns all his right and interest in the contract with the said H. T. Edens to the said W. A. Bowman.

Any difference between the parties is to be paid immediately in cash. The difference due L., D. Jennings, based on acreage herein stated, is $1,517, which may be paid by offset against R. N. Segars mortgage assumed by L. D. Jennings under his contract with B. W. Segars.

Mr. A. S. Harby, for appellant, cites: As to construction of contract. Time not of its essence: 91 S. C. 21; 9 Cyc. 605; 39 Cyc. 1338; 234 U. S. 270; 32 S. D. 438; 128 Ala. 121; 1 S. & M.. Ch. (Miss.) 376; 5 Oregon 235; 37 Fla. 439; 53 Am. St. Rep. 251. Effect of delay: 8 Cranch 471; 19 How. 224. Forfeitures not favored: 93 S. C. 23; 94 S. C. 184; 103 S. C. 243; 53 S. C. 572; Bailey Eq. 371. Messrs. Lee & Moise, for respondent.

March 6, 1917.

The opinion of the Court was delivered by Mr. Justice GAGE.

The appeal involves the construction of a written agreement between the parties litigant and especially of the foilowing clause, to wit:

"The prices and considerations herein named are based upon actual acreage, and each of said parties shall have the right to survey the lands above referred to, and any excess or shortage in acreage over or under the acreage stated in the deeds to be paid for, or deducted, at the rates herein. Surveys under this contract are to be made within ninety days from the date hereof; otherwise the acreage stated is to stand."

Let the entire agreement be reported.

The agreement was made concurrently with the partition. by cross-deeds of many parcels of land betwixt the parties, and which they held as tenants in common. It compassed other differences betwixt the parties than that suggested in the mooted clause. The surveys referred to and the basis of this action were not made within 90 days from the date of the agreement. On the ninetieth day the plaintiff requested an extension of the time to survey until May 1st, and the defendant dissented. The survey was begun in the field on the ninetieth day, and was completed some weeks thereafter. The plaintiff alleges that it turned out there were errors in the estimated actual acreage, against the plaintiff, one way and another, which amounted to nearly $2,000, and the plaintiff sued the defendant for that sum, and for what the complaint terms equality of partition.

1

The Court held that time was the essence of the contract, and the plaintiff was bound to have made the surveys within 90 days from the date of the contract, unless the defendant had waived a strict performance of it. The issue of waiver has been dissipated by a verdict. for the defendant, and no exception thereabout. And while there are three exceptions to the charge of the Court, there is admittedly but one question, and that 2 is: Shall the parties be held to abide the letter of the agreement?

It is a very old question whether time is of the essence of a contract, and the reason is, the application of the doctrine

Opinion of the Court.

depends upon innumerable circumstances.

[ 106 S. C.

The facts deter

mine the application, and seem, therefore, to determine the law.

The question arises out of many classes of cases; in building contracts which provide for forfeitures, in contracts for the purchase and sale of lands, in insurance contracts, and others; and decisions in one class do not much help to elucidate causes arising in another class. Generally, in a Court of law the time in which a thing is to be done is as much a part of the contract as any other feature of it. But in equity a different rule prevails; time is held to be of the essence or not, according to all the circumstances of the case. Yet even there, time will be regarded as of the essence, if the contractors have made it so by the use of words so plain as to leave no room for a consideration of the justice of the

case.

The appellant suggests in the argument that this is a cause in equity, but the record does not show that such a question was made below; the parties treated the case as one at law. But as we view the case that consideration is immaterial here. Suppose the instant agreement had provided that if the survey was not had in 90 days it should not be had thereafter, except by the consent of the parties indorsed on the agreement? There will be no two opinions about the effect of such a clause. The parties, having made so plain an agreement, would be held to it, without reference to the moralities of the case.

The case at bar is not altered. The parties agreed that "surveys under this contract are to be made within 90 days from the date thereof; otherwise the acreage stated is to stand." The seven words last quoted are those used by the contractors; they are susceptible of only one meaning; they closed the door to every negotiation after 90 days. The plaintiff feared that. He, on the ninetieth day, asked for an extention, and it was denied him. The defendant has used the sword, as he had the legal right to do. The plain

tiff is a man of affairs, a trained lawyer, accustomed to the use of words in written instruments. There is no way of escape for him-in a Court.

The judgment below is affirmed.

9632

SOUTH CAROLINA INS. CO. v. COOK ET AL.

MOORMAN v. BLACK & COULTER CO.
(91 S. E. 728.)

MORTGAGES ASSIGNMENT TO MORTGAGOR-Merger.—Where one while having legal ownership of land took bare legal title by assignment of an incumbrance on the land, evidenced by bond, mortgage, and note, for the sole purpose of reassigning, and without delivery or right to possession of the papers except by paying the obligation due the bank to whom he assigned, there was no merger, and the obligation of the mortgage was not extinguished.

Before SMITH, J., Columbia, September, 1916. Re

versed.

Consolidated actions by Robert Moorman, junior mortgagee, against the Black & Coulter Company and others, and by the South Carolina Insurance Company against Henry K. Cook, Robert Moorman and others. From a decree adjudging the liens of the various parties, defendant, Union National Bank, appeals.

Messrs. Barron, McKay, Frierson & Moffatt, for appellant, cite: As to merger: 2 Pom. Eq. Juris., pars. 790, 791; 24 S. C. 23. Absolute ownership: 1 Words & Phrases 41; 7 Barb. 590, 597; 77 N. Y. Suppl. 1025; 75 App. Div. 207. Transitory seizin: 4 Kent Com. 37; 1 Jones Mortgages, sec. 464; 36 Pa. St. 247; 78 Am. Dec. 375; 7 S. D. 465; 33

FOOTNOTE. As to merger of mortgage with estate, see notes 39 L. R. A. (N. S.) 834 to 843.

Tex. 33. Equitable assignment by subrogation: 3 Pom. Eą. Juris., secs. 1211 and 1212; 35 Cent. Dig., pp. 1578, 1583; 27 Cyc. 1332; Jones Mortgages, sec. 869. Cases distinguished: 31 S. C. 398; 67 S. C. 107, 108. Merger: 9 Wis. 466; 99 Am. St. Rep. 158, 159, 160; 54 Neb. 712; 34 N. Y. 320; 39 L. R. A. 841; 35 Cyc. 1413; Jones Mortgages, secs. 870, 865; 29 Pa. St. 260; 72 Am. Dec. 629. Not favored: 64 S. C. 193; 57 S. C. 187; 47 S. C. 305; 68 S. C. 102.

Mr. E. W. Mullins, for respondent, cites: As to merger: 2 Pom. Eq. Juris., sec. 797; 31 S. C. 398; 67 S. C. 94; 12 Cush. 227; 71 Ga. 372; 206 Ill. 159; 72 Iowa 329; 66 Fe!. 133.

March 8, 1917.

The opinion of the Court was delivered by MR. JUSTICI; WATTS.

The case is stated thus: This action was originally commenced by Robert Moorman July 12, 1915, for the foreclosure of a junior mortgage on certain property located on Hampton street, in the city of Columbia. The South Carolina Insurance Company subsequently (July, 1915) commenced an action to foreclose the first mortgage on the same premises, and the two actions were consolidated under an order of Court. Several subsequent and prior mortgagees were made parties to these actions, and they all answered, setting up their respective mortgages. The defendant, the Union National Bank of Columbia, was made a party defendant, being the alleged owner and holder of a bond executed by Robert Moorman, Henry W. Fair, R. B. Herbert, and T. Hugh Meighan (the latter being represented in said action by his executrices) to Henry T. Bouchier in the sum of $1,000, and secured by a mortgage executed by Robert Moorman to Henry T. Bouchier, the said Robert Moorman holding the legal title to said premises for the benefit of himself and the said Henry W. Fair, R. B. Her