70 So. 719 | Ala. | 1916
The amended bill, in which the wife is the sole complainant, seeks the cancellation of an instrument, in form a deed, upon the theory that it was in fact a mortgage on her property to secure the payment of the debt of her husband to the respondent, Murray Cannon. This appeal is from a decree sustaining Cannon’s demurrer; the chancellor expressly resting his ruling upon the fifth ground, which pointed the objection that the averments of the amended bill showed that the wife’s property, described in the amended bill, was conveyed
The amended bill’s averments characterizing the transaction as in fact a mortgage are these: “ (4) That the said conveyance, under the said agreement, was not to be an absolute deed, but it was understood and agreed' that, upon the payment to said Murray Cannon of said sum of, to wit, $1,048, without interest, which orator owed the said Cannon, by the date specified in said conveyance, that said Murray Cannon would reconvey to oratrix the lands described in the third paragraph of this bill.
“(5) That oratrix has paid off and settled the said debt of, to wit, $1,250, for the money she borrowed from said Cannon and for which she executed to him a mortgage on the other lands as above mentioned, but that the debt of her husband to said Cannon in the sum of $1,048 has not been paid.
“(7) Complainants allege that they have never parted with the possession of the land; it being the understanding and agreement that they should retain possession, and pay off the debt of orator, and they are now in the actual and constructive possession of the said lands’.’
The decree sustaining the demurrer is laid in error. It is reversed. The cause is remanded.
Reversed and remanded.