Pearson v. Seay, 35 Ala. 612

35 Ala. 612 | Ala. | 1860

STONE, J.

If the transaction which is brought to our notice in this record, was a sale by Mosely to Pearson, with a right reserved in the former to repurchase, there can be no question that the bill, on its face, contains equity. — See the authorities collected- and classified in tlio case of Kelly’s Heirs v. Allen, at the last term.

The chancellor dismissed the bill for want of equity; and lienee we are required to pronounce only on the case as made by the bill itself.

[2.J If the deed from Mosely to Pearson be a mortgage, it is not a mortgage to secure the payment of the notes given by the latter to the former. It does not appear, either from the deed, or the face, of the bill, that Mosely was under any promise or obligation to pay or protect the notes which were given by Pearson. It would be a strange proceeding, if Mosely should execute a mortgage to Pearson, to secure the payment of notes made by Pearson to him, Mosely.

If, then, the deed be a mortgage, it is a mortgage to secure the payment of six hundred dollars, which Mosely promised to pay to Peai'son. It does not appear that there is any written evidence of such promise, other than what «may be gathered from the terms of the deed. The fact that Pearson gave to Mosely notes, as evidence of his promise to pay six hundred dollars to him, is evidence that the parties knew the importance of a more enduring memorandum of their contracts, than human memory affords. Their failure to provide such evidence, is a circumstance tending to show that Mosely made no such promise.

Again: If we hold this deed to be a mortgage, the present transaction becomes a very anomalous one. Both Mosely and Pearson enter into a contemporaneous promise, each to pay the other six hundred dollars. The promise of each is the consideration on which the promise of the other rests. If this be so, and if Mr. Pearson has not estopped himself from defending against his notes in the hands of a transferree, then, whenever any attempt is made to coerce payment from him, he can plead Mosely’s promise to him as a set-off’ and defeat the recovery. Still, this argument assumes that Pearson required and took a mortgage to secure the payment of Mosely’s debt to him. This view, it seems to us, furnishes another argument against the assumption that the present deed was intended only as a mortgage.

We have duly examined our decisions on this question, and the tests they lay down for determining when a deed is to be regarded as a sale, and when security for money. See the following authorities: Eiland v. Radford, 7 Ala. 724; Sewall v. Henry, 9 Ala. 24; Turnipseed v. Cunningham, 16 Ala. 501; Locke v. Palmer, 26 Ala. 312; West v. Hendrix, 28 Ala. 226; Parish v. Gates, 29 Ala. 254; Crews v. Threadgill, at the last term.

Although this transaction had its inception in a proposition to borrow money, yet there was in fact no loan of money. We cannot, on the face of the deed, or iu the bill, find the evidence that Mr. Mosely owed Mr. Pearson a debt, as was held in the cases of Locke v. Palmer, Parish. v. Gates, and Crews v. Threadgill, supra. There being no debt, there is no mortgage.

Taking the face of the deed and the averments of the bill for our guide, we think the transaction was a sale by Mosely, with the privilege of repurchasing. — See West v. Hendrix, supra.

We confine what we have said to the case made by the complainant’s bill.

The decree of the chancellor is reversed, and the cause remanded.