66 Ala. 398 | Ala. | 1880
The only point, to which the instructions of the Circuit Court were directed, is, whether the instrument under which the appellees deduce title to the cotton in controversy is a mortgage, passing title, or the mere declaration of a lien or charge, intended as security for the payment of the debt owing to the appellees. If the latter is the true character of the instrument, it is certain no right of property passed to the appellees, and trover can not be maintained by them.—Treadway v. Treadway, 55 Ala. 390; Folmar v. Copeland, 58 Ala. 588; Stern v. Simpson, 62 Ala. 194.
In the construction of all written instruments, the purpose is to ascertain and give effect to the intention of parties. To ascertain the intention, regard must be had, not only to the nature of the instrument, but also to the condition of the parties, and the objects they had in view. The relation of-the parties when the instrument was executed, was that of debtor and creditor ; and the continuance of the relation for a definite period, and a probable increase of the indebtedness by future advances, was contemplated. As to the crop, the instrument contains no words of transfer, or conveyance. It is simply declared, the advances, or debt, shall constitute a lien on my crop, grown on the Gilmore plantation in Sumter county, Alabama, this year, in accordance with the act approved January 15th, 1866 ; while, as to the other property covered by the instrument, apt words of transfer and conveyance are used — the words bargain, sell, and convey. No precise form of words is necessary to constitute a mortgage. When a clear intention is manifested to charge particular property with the payment of a debt, in a court of equity the instrument will operate as a mortgage. In courts of law, in reference to personal property, the word mortgage, and other similar expressions, indicating the nature of the contract into which the parties are entering, have been deemed sufficient to pass the legal title.—Mervine v. White, 50 Ala. 388; Ellington v. Charleston, 51 Ala. 166. It is a question wholly of intention; and the words of this instrument distinguish between the crop, and the other property. On the one, a lien in accordance with the statute which creates a crop lien, as it is familiarly termed, is declared. Of the other property, a bargain, sale, and conveyance is made, which is subject to be defeated on conditions expressed. The one declares a lien only, which does not pass a right of property; the other passes the right of property. The two can not be con
The result is, the Circuit Court erred in the instructions given the jury; and its judgment is reversed, and the cause remanded.
