137 Ala. 329 | Ala. | 1902
The bill in this cause; was filed to have two certain deeds, absolute in form, executed by complainant to respondent, declared mortgages and to be allowed to redeem the lands conveyed by them. One of them was executed on the 5th day Decembei’, 1892, and conveys a tract of land comprising eighty acres and fifty-eight- one-hundredths of an acre for a recited consideration of two hundred dollars. The other bears date the 28th of January, 1893, and conveys one acre of land with all the improvements, buildings, etc. thereon for the: consideration of fifty dollars. The answer admits that the transaction resulting in the execution of the deeds.originated in a loan of money and that contemporaneously with their execution it was orally understood and agreed between the parties that the complainant, if he desired, at any time within three years might- re-purchase said lands by paying the purchase money back, all taxes and accrued interest. It is further alleged that the lands were conveyed by complainant to respondent in extinguishment of the debt due by the former to the latter, etc., etc.
It will be observed that the case is not one involving the issue whether the conveyances were intended
“Although it is difficult to establish fixed rules, by which to determine Avhethef a particular transaction is a mortgage, or a conditional sale, there are some facts which are regarded as of controlling importance in determining the question. Did the relation of debtor and creditor exist, before and at the time of the transaction? Or, if not, did the transaction commence in a negotiation for a. loan of money? Was there great disparity between the value of the property and the
In the application of the foregoing principles to the facts of this case, as we deduce them from the testimony, it may be well to consider the two transactions between the parties separately since there appears some slight difference in the testimony bearing upon the issues involved. As to the deed last made, conveying the house and lot, there can be little doubt but that it Avas intended as a mortgage. ■ The transaction commenced in the negotiation for a loan of money. There Avas great disparity betAAreen the Aralue of the property and the consideration passing for it. The complainant was allowed to remain all these 'years in the undisturbed possession of it, Avithout paying one cent for its use and occupation, a fact of great significance, entirely incompatible with the -idea that he had a mere right to repurchase, but entirely consistent with the theory that the deed was intended as a mortgage and was so regarded by both parties: It is true no note or .bond was taken evidencing a promise to repay the money loaned but this is not conclusive that no debt existed. — Glass v. Hieronymus, supra. It is only a circumstance, the value and weight of which depends upon all the facts and circumstances with AAdiich it is connected. In this case, in view of all the circumstances-surrounding the. transaction, the relation of the parties to each other, ¡the subsequent conduct of the parties Avith reference to the property itself, and the statement made by respondent to Pilley, we cannot-but regard it as of little significance.
As to the deed to the eighty acres of land, the evidence shoAvs, that the relation of debtor and creditor
Affirmed.