Martin v. Martin , 123 Ala. 191 ( 1898 )

HARALSON, J.

The legal principles upon which the insistence of complainants rests, are well understood and may be briefly stated. In Peeples v. Stolla, 57 Ala. 53, 58, it was said: “The effect of a mortgage, made by one capable in law of executing such a contract, is to leave on the mortgagor a personal liability for the residuum of the debt, if on foreclosure, the property mortgaged fails to yield-.a sum sufficient to pay it in full. Hence, one of the tests by which to determine Avhether or not a mortgage was intended, is the existence or not of a debt to uphold it.. If there is no debt, there can be no mortgage. On the other hand; security for a debt is incompatible with the idea of a conditional sale; and when shown to-exist, is conclusive that the transaction is a mortgage.”—Haynie v. Robertson, 58 Ala. 37.

In West v. Hendrix, 28 Ala. 226, often since approved, it was held: “When a conveyance is made in satisfaction of a precedent debt, it cannot take effect as amortgage, although containing a redemption clause; for the previous debt being extinguished, and no new one created, one of the essential attributes of a mortgage is wanting. * * * When a deed is made for a consideration paid at the time, whether the payment is made in cash, or by the surrender and satisfaction of á precedent debt, it will not lose the character of a conveyance, by an agreement on the part of the vendee, to allow the vendor to repurchase at a future day for the same price, or for an advanced price. * * * The fact that the party executing a conveyance, absolute in its terms, intended and considered it a mortgage, is not sufficient to make it a mortgage. To produce that effect, such must have been the clear and certain intention and understanding of the other party likewise. * inadequacy of price or consideration, alone, will not convert an absolute conveyance into a security for the repayment of money.’’—Peeples v. Stolla, supra; Douglass v. Moody, 80 Ala. 61; Vincent v. Walker, 86 Ala. 333; Knaus v. Dreher, 84 Ala. 319.

In this case, the complainant, J. W. Martin, who is a brother of defendant, swore that at the time the deed was made, defendant said, if witness would give him a deed to the land, he would give witness a contract to redeem it; that he would give witness a right to redeem it in ten years; that whenever he got his money with ten per cent interest and all that he was out on the place, lie would return the place to witness. ■ ' ■

This the defendant positively denies, and testified, that he never heard of any wish on the'part of complainants to repurchase the property, until two days after the sale had been consummated, when J. W. -Martin came to the Planters’ Warehouse in Union Springs, where defendant and. said J. G. McAndrew were at the time, and had a conversation with them on general matters: that when the conversation was through, and said Martin got up to leave, he turned to witness and said: “ITal, you got the best of me in that trade the other day,” when witness replied: “Do you think so?” to which he replied: “Yes, I do;” that Avitness then replied: “If you think so, I will give you a chance to buy the property at the price at which I took it, $1,909, and the taxes which I shall pay on the place, and ten per cent interest on the money.” He then said to witness: “How long will you give me — five years?” when-AA'itness replied: • “Yes I will giAre you ten years; you know I do not consider the title any account anyAvay.” Said complainant then turned to McAndreAv and requested him to put the agreement in writing, which Mc-AndreAv did, and Avitness signed it. Of this transaction McAndreAv gives a similar account. T,he evidence is satisfactory to the effect, that this paper was executed on the 19 th February, 1887, two days after the deed was executed and as an after agreement; was no part of the contract of sale, and that complainant, J. W. Martin, is at fault in his memory.as to what occurred.

It is a matter Avorthy of note, that for protection against the payment of this $1,909, the defendant held a mortgage, not only on the Dawson place, which he bought for this sum, but on two other places, one for 853 and the other for 320 acres. The debt was absolutely secure, and to hold this agreement, of the 19th February, to be a mortgage, would be to convict the defendant of the unreasonable and unnatural thing of giving up one mortgage taken as an indemnity against a suretyship, and taking another for the-same purpose on less than half the same property the first mortgage covered. Why should he desire to take a neAv mortgage which coA^ered only one plantation to secure a debt, that he already had a mortgage on three plantations to secure?

The complainant, J. W. Martin, on his cross-examination by defendant, swore that at the time he and his wife made the deed to defendant, defendant gave up to hi in the mortgage Avhich complainants had made to defendant and McAndrew as sureties, and that he had had the mortgage in his possession ever since.

Tlve defendant testified: “I turned over the mortgage and all the notes and obligations which I had taken up, and other papers to J. W. Martin. * * * My brother did not execute to me, either at the time of the delivery of the deed, or at the time of the execution of the contract of February 19th, 1887, or at any other-time, any note or obligation to pay me the §1,909 mentioned in said contract. He did not make me- any promise to pay the same at the time of the delivery of-said deed or since. I have no evidence that he owes me any sum of money. He does not owe me any sum of money, but he merely had the option to pay me said amount of money, to-wit, §1,909, and interest and taxes, thus buying back the land.”

It is manifest, that the defendant had no debt against complainants. They only bargained for the privilege of repurchasing, and were under no legal obligation to do so. Defendant could not have maintained any action against them for not paying the money, and could not have foreclosed the contract as a mortgage. The transaction was a sale with the privilege to repurchase reserved to the sellers.

It follows, the complainants, on whom the burden rested, failed to make out the case stated in their bill, and the decree of the court below must be affirmed.

Affirmed.