6 Div. 329 | Ala. | Oct 9, 1952
This is a suit in equity by appellant for specific performance of an oral agreement to execute a mortgage or to declare and establish an equitable lien on personal property. The question of the sufficiency of the bill is not raised on this appeal. On a final hearing the trial court denied relief and dismissed the bill. The decree must be affirmed.
The evidence was substantial that whatever debt was owing the plaintiff by the defendant had been paid. While this was, of course, controverted by the plaintiff, the trial court concluded against her contention. So under the favorable presumption attending such a ruling on testimony heard ore tenus before the trial judge, this court will not reverse. Rodgers v. Thornton,
It is also to be pointed out that the agreement contended for by the bill was unenforceable under the statute of frauds. An oral agreement to execute a written mortgage is unenforceable in equity either by way of specific performance or as an equitable mortgage. Palmer v. James,
Affirmed.
LIVINGSTON, C. J., and FOSTER and GOODWYN, JJ., concur.