46 So. 850 | Ala. | 1908
Tbe bill in this case is not, as counsel for appellee seem to consider it as being, for tbe specific performance of a contract, but is one to declare an equitable mortgage or lien upon tbe land described, and to enforce tbe same for tbe satisfaction of the debt, which it is claimed that it was tbe intention of tbe parties to be secured. We recognize tbe well-settled and familiar principle in equity that where it
In 3 Pomeroy’s Eq. Jurisprudence (Bd Ed.) § 1235, the general doctrine is thus stated: “The doctrine may be stated, in its most genera] form, that every express executory agreement in -writing (italics ours), whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands, not only of the original contractor, but. his heirs, administrators, executors, voluntary assignees, and purchasers or incumbrancers with notice. Under like circumstances, a merely verbal agreement may create a similar lien on personal property.’’ It is to be observed, according to this eminent text writer, that, where real estate or land is the subject of the intended
A review of the Alabama cases along this line will disclose that where an equitable mortgage or lien has been established on a verbal promise or agreement showing an intention to give a security, either personal property was the subject of the agreement, or, if land, then in that case something was done, as, for instance, the payment of the purchase money and a letting into possession, thereby taking the case without the statute. Such are many of the cases of our own cited in brief of appellant’s counsel.
The demurrer sufficiently raises the question and the decree of the chancellor in sustaining it will be affirmed.
Affirmed.