114 Ala. 612 | Ala. | 1896
The only question arising on this appeal is one of fact, namely, whether the transaction .wherein and whereby Kramer took a deed absolute on its face from Malinda Gaillard and entered into a written agreement to return the deed to her ' if she repaid him.certain money he had expended for her, within three years from the time of such expenditure, was a conditional sale or a mortgage. We do not propose to discuss the evidence at all in detail, but merely to advert to one or two principles of law pertinent to the inquiry of fact, and to announce our conclusion from the facts considered in the light of such principles. This is not an effort to have an absolute deed declared to be a mortgage, and .the strictness of pro'of required to support a bill for that purpose is not requisite here. Taking into consideration the agreement to return the deed to the, grantor if she paid certain money within a certain time, there is no absolute deed in. the case ; and the question is between a conditional sale and conveyance on the one and a mortgage oh the other. In such case not only is a less degree of stringency in the evidence adduced to show a mortgage instead of a conditional sale necessary, but the inclination of courts is to construe the writing to be a mortgage rather than a sale. — Peagler v. Stabler, 91 Ala. 308; Daniels v. Lowery, 92 Ala. 519 ; Reeves v. Abercrombie, 108 Ala. 538. The agreement which the grantee
Affirmed.