77 Ala. 309 | Ala. | 1884
We cannot clearly see that the decree of the chancellor is wrong, in holding that the evidence fails to satisfactorily show that two of the defendants, William and Charles Wilson, ever agreed to make a parol mortgage of their property to secure the debt admitted to be due the complainant. So far as concerns the other defendant, A. Wilson, the evidence probably shows that he expressed a willingness to give such a mortgage, both verbally and in writing; but his intention seems to have remained unexecuted. His note to the complainant, bearing date January, 24th, 18«3, is not sufficiently free from ambiguity to authorize us to construe it to be an equitable mortgage, operating as such inprmsenti. The effort is to foreclose this alleged equitable lien on certain property, which is claimed by A. Wilson to be exempt from all legal process. The right of exemption, even to personal property, in this State, can be waived only by an instrument in writing. A verbal mortgage can not be operative as such a waiver. Const. 1875, Art. X, sec. 7; Code, 1876, § 2846. It is provided by statute, as well as by our constitution, that all exemption waivers must be included in written instruments, and the statute further declares that “ the intention to make such waiver must be clearly expressed,” — Code, 1876, § 2848,