47 So. 226 | Ala. | 1908
— The bill in this case is filed by the grantor in a conveyance of lands absolute on its face, against the grantee, to have the conveyance declared in reality a mortgage, and praying that the grantee be let in to redeem the lands therein conveyed. The principle underlying the doctrine invoked by the bill is “that it would be a virtual fraud for the grantee to insist upon the deed as an absolute conveyance of the title, which had been intentionally given to him, and which he had knowingly accepted, merely as a security, and therefore in reality as a mortgage.” 3 Pom. Eq. Jur. § 1196. The doctrine prevails in this state that in equity parol evidence is admissible to show that a deed absolute on its face was only intended to be a security for the pay
The complainant Avas indebted to Cruise & Splawn, which debt Avas secured by a mortgage on 74 acres of land and some cattle. The mortgage Avas past due, and the land was advertised for sale under its terms. The respondent paid Cruise & Splawn the amount of their debt, and had the note and mortgage assigned to himself. The contention or theory of the complainant, as averred in the bill, is that respondent paid the debt and took the assignment in pursuance of an agreement, made with complainant, that he would pay Cruise & Splawn, have the assignment made to himself, and “give complainant a chance to pay off the debt;” that afterwards respondent went to the house of complainant and “demanded security from complainant in a deed to the land, and complainant and respondent then and there, agreed that a deed should be executed conveying the land to him (respondent), avíüi the understanding that complainant would have the right to redeem the land
We have seen that a higher and more satisfactory character of proof is required to establish that an instrument or conveyance is not what it purports to be than is necessary in ordinary civil cases. Generally a
As has been stated, the evidence of the litigants in respect to the agreement under which the debt was
It ivill not do to say that Burt made the statement in respect to the redemption and that Crowe might not have heard it, because Burt’s testimony that Crowe was within five or six feet of him and that the statement was made to both Crowe and Rogers is a clear refutation of such a suggestion. Nor Avill it suffice to say the conversation in respect to redemption occurred between Burt and Rogers after they retired from the room, for Burt’s testimony is to the effect that it occurred in the room, and immediately preceeded the execution of the deed, and, so far as his evidence goes, nothing was said betAveen him and Rogers, after they Avithdrew from the presence of Crowe and Mrs. Burt, in respect to the redemption or anything else. Rogers’ testimony is to the effect that not a word was said, by Burt or himself, in
But it is said that Rogers, on the day the deed was executed, told SteAvart that he had taken up a mortgage for Burt on some land and had given Burt the right to redeem it, the same as if it had been sold under a mortgage sale. SteAvart did give testimony to that effect. Rogers denies making such a statement. His evidence in respect to the conversation with SteAvart is as folloAvs: “I stepped to the door and saAV George SteAvart coming to the house. He asked me what we were doing there, and I told him that Burt had made me a deed to this land. He said he Avas certainly sorry for Mr. Burt. He said could Burt redeem it, and. I told him he could not. He said he Avould like to tell Mr. Burt that he could redeem it; that he was a good saw hand. I told him he could tell him what he wished to, but there was no redemption for him. That is all that Avas said. I did not tell him that he would have the same right to redeem by deed as he would have under a mortgage. I did not tell Stewart that Burt could
The rule in respect to verbal admissions or declarations of a party in interest is that they should be received with great caution, “and that the value of evidence of them depends greatly upon its consistency with other evidence not subject to its infirmities. When there is no reason to apprehend fabrication, there .is such danger of mistake or imperfection in the repetition of the mere oral statements of another, so much of uncertainty as to the clearness with which his meaning was expressed, or whether he was understood by the witness as he intended to be understood, that in its own nature the evidence is unsatisfactory.” And, as was well said in
Noav, in respect to evidence corroborative of the respondent’s. He testified that, after he had taken up the note and mortgage, he first saw Burt at the house of his (respondent’s) daughter, Mrs. Crocker ; that he told Burt he had had the note and mortgage transferred to himself, and showed them to Burt, and had his daughter to read them to him; that he told Burt he was ready to have the deed made at any time, and told Burt he would turn his papers and cattle over to him when he made him the deed; and that Burt said “he would make me a deed.” Mrs. Crocker testified that Burt, in the conversation Avith Rogers at her house, told him that he would make him a deed to the land if he would turn the cattle over to him, and that nothing Avas said about redeeming the land. Burt testified that all that hé remembered of what was said at Mrs. Crock’s Avas that Rogers said, “I have those papers.” and that “he named then about me giving him the yearling for his trouble. He said we' would get together and fix up everything.” Now, it seems to fis that there is corroboration of the respondent’s evidence'in that of Mrs. Crocker, as well
We cannot repress the faint' suggestion of concert of action after consultation that arises from this phase of- thé evidence. The witnesses vary in their estimates of the value of the land, from $200 to $400. The consideration recited in the deed is $150. While in cases of this sort disparity in value may be looked to, it will not be allowed to control, irrespective of the other facts and circumstances. Furthermore, the bill does not ask for relief on the ground of inadequacy of consideration; and the proof fails to show any oppression or unfair advantage, or that the consideration was so' inadequate as to’ “shock the conscience” — so grossly disproportionate as to force the conviction that the transaction was not fair and bona fide. —Perdue v. Bell, 83 Ala. 396, 400, 3 South. 698; Douglass v. Moody, 80 Ala. 69; Vincent v. Walker, 86 Ala. 333, 336, 5 South. 465; Peagler v. Stabler, 91 Ala. 308, 9 South. 157; Adams v. Pilcher, 92 Ala. 474, 477, 8 South. 757; Martin v. Martin, 123 Ala. 191, 195, 26 South. 525.
As to the possession of the premises, the complainant testified that he nailed the house up in January, 1906.
Conceding that the parties stand on an equal footing as to interest, and according to all the witnesses truthfulness and honesty of purpose, the conclusion most favoroble to complainant is that he regarded the transaction as a mortgage, while the resondent regarded it as an absolute sale. “We have said the concurring intention of both the parties determine the character of the transaction, and, when ascertained, must prevail. It is not the intention of the one, dissociated from the intention of the other, which is to be ascertained. The mutual assent of the parties is essential to the completion of a contract. The ascertainment of different intentions and different understandings does not make a case in which equity will construe the transaction to be a mortgage.” —Douglass v. Moody, 80 Ala. 61. Moreover, the testimony of the complainant himself does not support the theory that it was not the intention to execute a deed, or that he did not fully understand the effect of the conveyance. The gravamen of his testimony is that he was to be allowed two years in which to redeem the property. —Peagler v. Stabler, 91 Ala. 308, 310, 9 South. 157.
Upon the whole case, the court is of the opinion that the presumption, arising from the instrument, that it is what it purports on its face to be, has not been overcome. The decree of the chancellor is reversed, and a decree will be here rendered dismissing the bill.
Reversed and rendered.