72 Ala. 361 | Ala. | 1882
The purpose of the original bill, filed by the appellant, is the redemption of certain lands, which it is averred she conveyed by way of mortgage to the appellee, Wilkinson, as a security for the repayment of money borrowed. The conveyance to Wilkinson is, in form and terms, absolute and unconditional.
In a court of equity, the character of the conveyance must
It is not pretended, in the present case, that the transaction between the parties was, as tlie-conveyance on its face expresses,, an absolute, unconditional sale. It is an admitted fact, that there was a eotemporaneous agreement, subjecting the conveyance to conditions or trusts not expressed upon its face. The point of contention is, whether a mortgage or a conditional sale was intended. The lands had been sold under a mortgage-executed by the appellant, and purchased by Dunklin. The statutory period of redemption had expired, but Dunklin gave to the appellant the privilege of redeeming notwithstanding-that fact, upon the same terms and conditions on which she could have been let in to redeem, if within due time she had asserted her rights. The .amount of money necessary to effect the redemption was agreed upon and settled between the appellant and Dunklin. There had been negotiations between
Although it is difficult to establish fixed rules, by which to determine whether 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 consideration passing for it ? Is there a debt continuing, for the payment of which the vendor is liable ? If any one of these facts is found to exist, in a doubtful case, it will go far to show a mortgage was intended. If all of them are found concurring, the transaction will be regarded as a mortgage, rather than a conditional sale, unless the purchaser, by clear and convincing evidence, removes the presumptions arising from them.—Eiland v. Radford, 7 Ala. 724; Robinson v. Farrelly, 16 Ala. 472; Locke v. Palmer, 26 Ala. 312; Crews v. Threadgill, 35 Ala. 334; M. B. & L. Asso. v. Robertson, 65 Ala. 382. All these indicia
A bona fide purchaser, upon a valuable consideration, o'f lands chargeable with an outstanding equity, of which he has no notice until after the payment of the purchase-money, a court of equity favors and protects, and will not divest him of the legal estate, or enforce the equity against him. It is in this relation, the appellee, Barganier, stands. lie purchased from Wilkinson, upon a fair and valuable consideration, paying .in full the purchase-money, and receiving a conveyance of the legal estate, without notice of the equity of the appellant. But, while protection is afforded to him, Wilkinson must account for the purchase-money received from him, and the accruing in
The result is, the chancellor erred in decreeing the transaction was a conditional sale, and not a mortgage. The decree must be reversed, and a decree here rendered in conformity to this opinion.