45 So. 69 | Ala. | 1907
— The purpose of the bill, presented by the wife, is to have a formal deed declared a mortgage, and to cancel it because given to secure the debt of the husband. The. appellant asserts that the transaction was a valid sale and an agreement to repurchase within a given time. The chancellor granted, in the main, the relief prayed.
The wife may sell her lands in payment of the debt of the husband, but she cannot, directly or indirectly, so subject them, as a security therefor, that she may not have the securing instrument canceled and held for naught. This has been so often declared as to require no more than the statement of the rule. The issue here is one of fact, whether the transaction was an unconditional sale and agreement to repurchase by a given time, or a method to secure the payment of the husband’s debt. The issue can, we think, be correctly determined by the answer to the question: Was the existing debt paid, satisfied by the conveyance of the lands to the appellant? It is axiomatic that there can be no mortgage unless there is a mortgage debt. We are of the opinion that the indebtedness existing prior to the conveyance was paid, settled, thereby; and hence the conveyance was not intended by the parties as a security for that indebtedness; and, of course, if not, the consequent agreement for a repurchase and the note given to that end did not rest upon any consideration other than that present in the agreement to repurchase. We will state, briefly, the reasons for this decision of the question of payment of the debt vel non:
The fact that a creditor of the husband is paid the debt by means of the conveyance, by the wife, of her
The decree appealed from is reversed, and .one is here rendered dismissing the bill.
Reversed and rendered.