Kramer v. BrownKramer v. Brown
- Reporters:
- Before:
- McClellan
The only question arising on this appeal is one of faсt, 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 monеy he had expended for her, within three years from the timе of such expenditure, was a conditional sale оr a mortgage. We do not propose to discuss thе evidence at all in detail, but merely to advert to one or two principles of law pertinent to the inquiry оf fact, and to announce our conclusion from thе facts considered in the light of such principles. This is not аn effort to have an absolute deed declarеd to be a mortgage, and .the strictness of pro‘of rеquired to support a bill for that purpose is not requisite here. Taking into consideration the agreement tо 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 conditionаl sale and conveyance on the one and а mortgage oh the other. In such case not only is a less degree of stringency in the evidence adduced tо 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 *615entered into itself tends strongly to show that there was a continuing debt from Malinda Gaillard to Kramer, and that the purpose of the transaction was to secure the payment of this debt. This is the writing by Kramer ‘: ‘ ‘Agreement, as agreed by me at the time оf the sale of her house in 1891. Malinda gave me deed оf her house for money paid by me to .the sheriff, etc., thе same to be restored to her if she pays me the money with interest within three years after date of redemption.” There was thus a certain sum of money to be repaid with interest, and upon such payment there was not tо be a reconveyance by Kramer to Malinda аs would have been proper and natural and neсessary upon a repurchase by her, but the deed wаs to be surrendered to her as is proper; natural аnd sufficient in case of the payment and satisfaction of á mortgage. And the testimony of Frenkle, Kramer’s witness, tended to show that the sole purpose of the transaction was to secure the repayment to Kramer of the money advanced by him to Malinda, and that it took the form it did solely to save the expense of foreclosing a mortgage. When to this is added the testimony of the sеveral witnesses examined ‘for complainants, going to show that there was a continuing debt, and that the deed was given merely to secure its payment, we have no difficulty in concurring in the conclusion reached by the chancellor ; and his decree is affirmed.
Affirmed.