46 So. 760 | Ala. | 1908
The bill was Filed in tbis case by the appellee against the appellant for the purpose of having an absolute deed declared to be a mortgage, etc. [Respondent made a motion to dismiss the bill for want of equity, which motion was overruled. A decree pro confesso was taken, followed by a reference and final decree. The assignments of error are to the rendering of the decree overruling the motion to dismiss, the decree declaring complainant entitled to relief and ordering the reference, and the final decree.
The facts set out in the bill are that the complainant oived a balance of $150 on the land described in the bill and applied to respondent for a loan of said money; that respondent agreed to loan it, or to assist him in securing such a loan, if he would secure the same. Thereupon they entered into the written agreement or lease, Avhich is set out in the statement of this case by the reporter. The bill of complaint alleges “that, while said instrument appears upon its face to be an absolute lease of said land, its sole purpose was to secure the said N. B. Johnson in the manner and for the purpose aforesaid, and that it Avas agreed and stipulated that the said N. B. Johnson should have the right to cut the pine timber upon said lands to the amount and value sufficient to pay the said Johnson said indebtedness, according to the market value of the timber at the time he should cut the same, and in that way the complainant should repay to said Johnson the said loan, and that Avhen thus paid the said Johnson should surrender the lease, and the same should be fully discharged and terminated.” It also alleges that the money was obtained from a bank on a note signed by complainant and respondent, which note Avas afterward paid by respondent, and also that the respondent had cut from said land timber in value largely over the amount necessary to
“While a decree pro confesso is an admission of the facts alleged, it is not an admission that the complainant is entitled to equitable relief, unless authorized by the allegations of the bill and is not consent that the relief prayed for may be granted.” — Johnson v. Kelly, 80 Ala. 135, 136, McDonald v. Mobile, etc. Co., 56 Ala. 468. This court has recognized the exception to the general rule of law that a written conveyance, cannot be contradicted by parol testimony only to the extent that it may be shown that a deed absolute on its face may be shown to have been intended as a mortgage.
The other members of the court hold that, inasmuch as the agreement described was for the purpose of securing the amount paid by said Johnson, it was in effect a mortgage, and that, consequently there is equity in the bill. The opinion of the writer is as follows:
In order to authorize the court to declare an absolute conveyance to be a mortgage, the testimony “must be clear consistent, strong, and convincing.” .It is essential to a mortgage that there must be a binding, continuing debt, and where there is no debt a mortgage is impossible. “A mortgage is the conveyance of an estate by way of pledge for the security of a debt, and to become void on payment of it.” 4 Kent’s Com. 133; 27 Cyc. 957, and notes; West v. Hendrix, 28 Ala. 226; Knaus v. Dreher, 84 Ala. 319, 4 South. 287; Haynie v. Robertson, 58 Ala. 37; Swift v. Swift, 36 Ala. 147; Adams v. Pilcher, 92 Ala. 474, 8 South. 757 Peagler v. Stabler, 91 Ala. 310, 9 South. 157 ;Pearson v. Seay, 35 Ala. 612; 27 Cyc. 1903, b, 1006, 1025. According to the statements of the bill as to the agreement, which is sought to be set up in place of the written instrument,
The decree of the court is affirmed.