14 Ala. 218 | Ala. | 1848
It is a well settled rule of law, that a conveyance of property, whether real or personal, absolute on its face, may be shown to be a mortgage. See 5 Paige, 9 ; 6 Johns. Ch. 416; 2 J. J. Marsh. 471; English v. Lane, 1 Porter’s Rep. 328.
If an absolute conveyance is executed, upon the promise of the grantee to hold the property upon trusts, or conditions which are not reduced to writing, they may be established by parol proof, if the grantee afterwards assert an absolute estate for his own use. See Kenedy’s Ex’rs v. The Heirs of Kenedy, 2 Ala. Rep. 589 ; 6 Paige, 355.
The ground on which equity will permit parol proof, to show the conveyance to be a mortgage, or that it was executed upon trusts, which the grantee denies, is, that it would be a fraud to permit the grantee to hold the property discharged of the trusts and conditions, which were originally attached to the conveyance, and which he promised to perform. See 1 Paige, 147; Kenedy’s Heirs v. Kenedy’s Ex’rs, 2 Ala. 588, 589; 1 Dall. Rep. 424.
Although the rule of law is settled, that parol evidence cannot be received to vary the terms of a written contract, yet no written evidence will preclude a court of equity from inquiring into, and granting relief against a fraud; and if one receive a deed absolute on its face, but upon certain pa-rol conditions or trusts, which he agreed to fulfill, and he
Mary Poindexter says, she heard Abner Hughes say, he was to have the woman and children for their victuals and clothes, and had hired the two boys, and was to return them in two years. Mary Harper saw Abner Hughes hand John Edis Hughes some papers, when the bill of sale was executed, which John Edis Hughes tore up — she saw nothing more.
Webb Kidd, examined on the part of the defendant, says, that John Edis Hughes told him, before the trade, that he was anxious to sell the negroes to his brother, Abner J. Hughes, but that Abner was unwilling to go into the trade, and requested witness to urge Abner to buy them; which he accordingly did. The reason John Edis assigned for wishing to sell them was, that they were of no service to him, and would be to his brother.
Rebecca Harper was re-examined on the part of the res
Under this proof, we fully agree with the chancellor, that it is too uncertain and unsatisfactory, to establish a trust, in opposition to the answer of the defendant, and the bill of sale which is absolute on its face.
Let the decree be affirmed.