THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Mary Catherine R. Furtick, Respondent,

v.

Colby W. Furtick, Appellant.

Appeal From Orangeburg County
 F. Lee Prickett, Jr., Special Referee

Unpublished Opinion No. 2004-UP-349
Submitted May 12, 2004 – Filed May 25, 2004

AFFIRMED

James B. Richardson, Jr., of Columbia and Ladson H. Beach, Jr., of Orangeburg, for Appellant.

Thomas B. Bryant, III, of Orangeburg, for Respondent.

PER CURIAM: Colby W. Furtick (Appellant) appeals from a special referee’s order finding a mortgage held by him was unenforceable against Mary Catherine R. Furtick (Respondent) due to the doctrine of laches.  We affirm.

FACTS

Respondent is the widow of Appellant’s son, Michael.  Before his death, Michael signed two mortgages.  On April 30, 1974, Appellant conveyed to Michael a 200-acre tract of land for “Ten and 00/100 ($10.00) Dollars, love and affection.”  In 1993, Appellant recorded a mortgage (Mortgage 1) dated April 30, 1974, the same date as the conveyance of property.  The mortgage was to secure an indebtedness of $45,000.  This mortgage was held unenforceable by the special referee due to the statute of limitations and laches and is not disputed here.

On May 20, 1983, Michael obtained a $50,000 loan from Southern Bank & Trust.  In order to secure the loan, Michael gave Southern Bank a mortgage on the 200-acre tract of land.  In October 1985, Appellant negotiated to refinance with Southern Bank to pay off Michael’s mortgage.  Michael had been very ill and had accumulated significant debts.  Southern Bank issued a new secured loan to Michael for $35,000 secured by a mortgage.  Appellant guaranteed and endorsed this mortgage (Mortgage 2).  He also made a large payment of around $17,000 to reduce the size of the debt from $50,000 to $35,000 for the new mortgage.  On December 26, 1989, (after Michael’s death on January 3, 1987) Appellant paid off the remaining balance of the note and mortgage and had it assigned to himself.  Much later Appellant had an assignment agreement formally executed between Southern Bank’s successor in interest and himself on November 26, 1993 and filed on December 8, 1993.  Appellant never made a claim against Michael’s estate for any part of this mortgage debt. 

The only time that the Respondent expressed any knowledge of the 1985 mortgage after her husband’s death was when she was asked by a bank employee Kathleen Fanning as to how she would pay the loan off and Respondent said “I told her that she [Kathleen Fanning] would have to talk to Mr. Furtick.”  Respondent further stated that Appellant had never contacted Respondent about paying off the mortgage.    

In July 2000, pursuant to a condemnation action against the 200-acre property, Respondent became aware of the two mortgages upon the property.  Respondent had paid off most of an unrelated first mortgage on the property with the Federal Land Bank, which was used to build the marital home where she has been living since 1978.  Mortgage 1 and Mortgage 2 were the only additional liens on the tract.  Once Respondent became aware of the additional mortgages in 2000, Appellant offered to cancel all the debts (Mortgage 1 and 2) if the Respondent would give the land to her children (by Appellant’s son Michael Furtick).  Respondent filed a declaratory judgment action seeking a determination that the two mortgages were invalid or unenforceable.  Respondent argued that equitable defenses – including laches – operated to invalidate the mortgages.  This matter was then referred to a special referee. 

After a hearing on the merits, the special referee found neither of the two mortgages was enforceable.  The referee concluded Mortgage 1 was unenforceable because of the statute of limitations and laches and Mortgage 2 was unenforceable because of laches. [1]   Appellant did not file a subsequent motion to alter or amend the judgment.

STANDARD OF REVIEW 

“A suit for declaratory judgment is neither legal nor equitable, but is determined by the nature of the underlying issue.”  Felts v. Richland County, 303 S.C. 354, 356, 400 S.E.2d 781, 782 (1991).  An action to foreclose a real estate mortgage is one in equity.  Carsten v. Wilson, 241 S.C. 516, 520, 129 S.E.2d 431, 434 (1963).  “In actions in equity referred to a special referee with finality, the appellate court may view the evidence to determine the facts in accordance with its own view of the preponderance of the evidence, though it is not required to disregard the findings of the special referee.”  Florence County Sch. Dist. #2 v. Interkal, Inc., 348 S.C. 446, 450, 559 S.E.2d 866, 868 (Ct. App. 2002).

LAW/ANALYSIS

Appellant argues the special referee erred in holding Appellant was barred from enforcing Mortgage 2 on the ground of laches.  Specifically, Appellant argues (1) he was not negligent in failing to inform Catherine Furtick of the assignment of the mortgage to himself and that she was not prejudiced by his delay and (2) laches is not a defense to a mortgage foreclosure action and (3) in any event the statute of limitations S.C. Code Ann. § 29-1-10 (Supp. 2003) supersedes any equitable defense.  We do not agree.

Laches

Laches is defined as “neglect for an unreasonable and unexplained length of time, under circumstances affording opportunity for diligence, to do what in law should have been done.”  Hallums v. Hallums, 296 S.C. 195, 198, 371 S.E.2d 525, 527 (1988).  

“Whether the plaintiff is barred by laches is to be determined in light of the facts of each case, taking into consideration whether the delay has worked injury, prejudice, or disadvantage to the other party.”  Arceneaux v. Arrington, 284 S.C. 500, 503, 327 S.E.2d 357, 358 (Ct. App. 1985); see also Grossman v. Grossman, 242 S.C. 298, 309, 130 S.E.2d 850, 855 (1963) (“Delay alone in the assertion of a right does not constitute laches.  It must be shown in addition that such delay has resulted in material prejudice to the defendant.”).  

We concur with the special referee’s finding that Appellant’s claim under Mortgage 2 failed due to laches.  Appellant held Mortgage 2 for eleven years, but did not take any active steps to assert his rights until forced to do so by the condemnation action.  In fact, Appellant did not record this mortgage assignment, which was executed Dec. 26, 1989, until Dec. 8, 1993 and never informed Respondent of its existence.  Appellant even testified he had no plans to pursue the debt, as he wanted his grandchildren to one day own the land.  In his testimony Mr. Furtick stated that the reason he filed the assignment in 1993 was “I felt like [Respondent] wasn’t taking care of the children, and her lifestyle, and I just thought I’d try to save it for the children.”  He also stated in another point in his testimony that he “didn’t like the way [Respondent] was treating the children.”  We find Appellant was clearly lax in initiating any type of proceeding against the mortgaged property. 

We also find this inaction served to prejudice Respondent.  Respondent, over the course of several years, worked to pay down the balance of the first mortgage on the property.  At trial, Respondent testified she was within two years of paying off the first mortgage with the Federal Land Bank, which is not disputed here.  Thus, Respondent has been prejudiced by Appellant’s delay, as she is now saddled with a previously unknown second mortgage on the land. [2]   Perhaps if she had been aware of Mortgage 2, she would have taken steps to reduce that debt. 

Section 29-1-10 states, in pertinent part:

No mortgage or deed having the effect of a mortgage or other lien shall constitute a lien upon any real estate after the lapse of twenty years from the date for the maturity of the lien. . . .  When there is no maturity stated or fixed in the mortgage or the record of the mortgage, then the provisions hereof are applicable from the date of that mortgage and that mortgage shall not constitute a lien after the lapse of twenty years from the date thereof.  

S.C. Code Ann. § 29-1-10 (Supp. 2003).

We disagree with Appellant’s contention that section 29-1-10 creates a bright line rule that a mortgage holder can seek foreclosure on the last day of the twentieth year without having demanded such payment earlier and cannot be barred by laches.  “Since an action to foreclose a mortgage is in equity…the equitable defenses of laches, waiver and estoppel may be raised against the mortgagee.”  Rakestraw v. Dozier Assocs., Inc., 285 S.C. 358, 360, 329 S.E.2d 437, 438 (1985).  The case law clearly provides that the issue of whether a party is barred by laches from asserting a right is to be determined in light of the facts of each case.  Furthermore, the cases cited by Appellant in support of his argument for a bright line rule are factually distinct from the instant case and do not support the existence of such a rule.  See, e.g., F.Gregorie & Son v. Hamlin, 273 S.C. 412, 257 S.E.2d 699 (1979) (determining laches was not a bar to the foreclosure action since it was instituted in same year in which mortgagee first claimed ownership); Robinson v. Watson, 198 S.C. 396, 18 S.E. 215 (1941) (holding laches should not be applied as the mortgagor benefited from the mortgagee’s delay); Leland v. Morrison, 92 S.C. 501, 75 S.E. 889 (1912) (finding the statute applied instead of laches because the mortgagor had continuing knowledge of the mortgagee’s right to redeem).

Accordingly, the special referee did not err in finding Mortgage 2 unenforceable and invalid due to the equitable doctrine of laches.

CONCLUSION

Based upon the foregoing, the special referee's order holding Mortgage 2 unenforceable because of laches is

AFFIRMED.

ANDERSON, HUFF, and KITTREDGE, JJ., concur.