43 So. 360 | Ala. | 1907
This cause was submitted in the court below by the parties for a. final decree on the pleadings and evidence as noted by the register, and it is from the final decree rendered on this submission and hearing that the present appeal is prosecuted. The note of submission made by the register is silent as to any objection or objections by either party to the evidence, or any part of the evidence, offered, and it does not otherwise appear that any objections to the evidence were made to the court on the hearing of the- cause. For this reason we might now disregard questions here raised on objections- to evidence as being now raised for the first time.
If E. T. Sloan, by reason of being a nominal stockholder of one share in the T. N. Hays Company, could be said to he a person having a pecuniary interest in the result of the suit, affecting his competency as a Avitness, which Ave do not decide, the fact remains that he was called to testify by the persons to Avhom his interest was opposed. It is a Avell-settled rule that, Avhen a conveyance which purports on its face to be an absolute deed is sought to be shoAvn to be a mortgage, it must be done by evidence that is clear and satisfaclry. — Jordan v. Garner, 101 Ala. 414, 13 South. 678; Adams v. Pilcher, 92 Ala. 477, 8 South. 757; Peagler v. Stabler, 91 Ala. 308, 9 South. 157.
We think the evidence in this case very clearly and satisfactorily sIioaa'S that the deed in question was intended to operate as a mortgage. All the circumstantial facts in the case are corroborative of the testimony of the Avitness along this line. It appears, from the an