Ellington v. Charleston, 51 Ala. 166

51 Ala. 166 | Ala. | 1874

BRICKELL, J.

In the construction of written instruments, the intention of the parties must govern ; and to ascertain that intention, regard must be had to the nature of the instrument itself, the condition of the parties executing it, and the objects which they had in view. Strong v. Gregory, 19 Ala. 147; Bryant v. Bryant, 35 Ala. 315. When the written contract between appellant and appellee, given in evidence, was entered into, the relation of debtor and creditor existed between them. The appellee was indebted to the appellant, for a balance for rent of land and advances during the year 1872, which was due, and had incurred a debt, to become due, for the rent of land in 1873. The instrument recites the existence of this indebtedness, and declares that the appellant shall have a lien on the horse in controversy, “ to have and to hold,” until its payment. There is a stipulation that the appellee shall feed the horse. The instrument is drawn very in-artificially, and is very obscure in many of its expressions. The general rule is, that every conveyance of property as a security for a debt shall operate as a mortgage. There are not, in this instrument, any technical words of transfer, or conveyance; but its expression that the creditor shall have a lien on the horse, to have and hold until the payment of the debts, is as significant of the intention to charge the horse with their payment, and that this lien should be defeated only by payment, as any technical words which could have been used. They clearly express the popular acceptation of a mortgage, which is not materially different from its legal effect. Considering the relation of the parties, the words of the instrument, and the objects they must have had in view, we cannot hesitate to declare it is a mortgage. If that is not its character, we do not see what operation or effect can be given it.

2. A mortgagee of chattels has the whole legal title, subject to defeasance by the payment of the mortgage debt. This legal title draws to itself the right of immediate and continuous possession, unless the mortgage stipulates for the mortgagor’s possession until default is made in the payment of the mortgage debt. 2 Hilliard Mort. § 43; Pickard v. Low, 3 Shep. (Maine) 43; Duval v. McLoskey, 1 Ala. 729; Mansony & Hurtell v. U. S. Bank, 4 Ala. 745. This instrument contains no stipulation,' postponing the mortgagee’s right of possession. The appellee not having an absolute or qualified property in the horse, and no right of immediate possession, cannot maintain the action of detinue. Holmes v. Bell, 3 Cush. (Mass.) 322. Whatever were her rights when this action commenced, they were purely equitable. We incline to the opinion, that under the contract the appellee would have been entitled to the use of the horse in cultivating the lands rented of appellant. It appears she abandoned the cultivation of these lands, prior to the commencement of this suit; and the question of her right to the use of the horse does not arise.

The charge of the circuit court is erroneous ; the judgment is reversed, and the cause remanded. .