48 So. 481 | Ala. | 1908
The bill in this case Avas filed by the appellee to have an absolute deed declared a mortgage.
There is no controversy about the facts that the complainant executed the absolute deed, conveying the property to the defendant, and also signed the lease contract, by Avhich he was to pay so much monthly as'rent for the premises, with the agreement therein expressed that, if he made the monthly payments promptly, a conveyance of the property was to be made to him, but, if not, he was to have no right of purchase; also, that he has not made such payments according to said instrument; also, that complainant can read and write, that he read the lease contract a short time after the copy was delivered to him, and continued to make payments thereunder Avithout making any protest as to its terms.
The testimony of the complainant is in conflict with the testimony of the defendant, but that of the notary who took the acknowledgment tends to support the contention of the defendant.
The testimony is not of that clear and conclusive character Avhich AA’oulcl justify the court in setting aside the plain language of the written instruments, and declaring the deed a mortgage.
The decree of the court is reversed; and a decree will be here rendered dismissing the bill.
Reversed and rendered.