West and Wife v. Hendrix. have the land whenever he got the money that he claimed from West." Joseph Smith." Lived on said land about one year, in 1848 or 1849, and built the house in which he lived. Applied to said John C. and Sarah West for leave to reside on said land, and they told him that he must see Hendrix in order to get leave, that the land was the said Hendrix's, unless he (West) paid him some money by a certain time; that Hendrix had given him a certain time to raise the money, and that, if he raised it, Hendrix was to let him have the land." George Wester testifies, that West, at and before the time when the land was entered, was insolvent. A. Wester testifies, that West told him "he intended tendering Hendrix the sum of money for the land in controversy, but that he (Hendrix) should not have the said money"; and that he heard Hendrix say, at a time not recollected, "that he had taken a deed to the land in controversy in payment of what West owed him, and that the land was to be West's if he redeemed it at a given time." John S. Wilson testifies, that he once had a deed in his possession for the land in controversy, executed by Sarah Smith to said Hendrix; that the deed was given to him by Hendrix, to be recorded, witness then being clerk of the county court of Cherokee; "that he presented said deed to said Sarah, who acknowledged it, stating to Hendrix, who was present at the time, that she desired him not to sell said land." He also proves the handwriting of Hendrix to a receipt, appended to an account against West showing a balance of $53 71, which was in these words: "Rec'd the above, fifty-three dollars and seventy-one cents, in full, of J. C. West, pr. Sarah Smith." (signed) "J. M. Hendrix, June 26, 1847." The chancellor, on final hearing, dismissed the bill, and his decree is now assigned for error. D. W. BAINE, for the appellants, contended,— 1. That the deed and bond for title, in connection with the sole fact that the deed was founded on a pre-existing debt, upon their face constitute a mortgage.--Hinson v. Partee, 11 Humph. 587; Marshall v. Stewart, 17 Ohio, 356; Bacon West and Wife v. Hendrix. v. Brown, 19 Conn. 29; Kemp v. Earp, 7 Iredell's Eq. R. 167; Hammond v. Hopkins, 3 Yerger, 525. In all the cases decided by this court, holding that a bill of sale, with a defeasance, is not on its face a mortgage, the payment of the purchase money and interest is not stipulated; with the single exception of McKinstry v. Conly, 12 Ala. 678, where other words in the defeasance clearly showed its character. 2. That the written contract, controlled and explained by the parol proof, constitutes a mortgage. The undisputed facts of the case show all the indicia of a mortgage: there was an existing debt due, not from the grantor, but from a third person; Hendrix told the witnesses to the bond, at the time it was executed, that he was taking a lien on the land to secure the debt which West owed him; the possession of the land remained in the grantor, without any contract to pay rent; and the land was worth three times the amount of the purchase money stated in the deed.-Turnipseed v. Cunningham, 16 Ala. 508; Eiland v. Radford, 7 ib. 724; Russell v. Southard, 12 Howard, 139; Hudson v. Isbell, 5 Stew. & P. 77; May v. Eastin, 2 Porter, 426. 3. That parol proof is admissible to show that the transaction was intended as a mortgage.-Eiland v. Radford, 7 Ala. 724; Hudson v. Isbell, 5 Stew. & P. 77; McKinstry v. Conly, 12 Ala. 678; Robinson v. Farrelly, 16 ib. 476; Russell v. Southard, 12 Howard, 139. 4. That the delivery and receipt of West's account, at the time the bond and deed were executed, did not extinguish the debt; and that the declarations of Hendrix, at the time of the transaction and subsequent to the law-day mentioned in the bond, showed that he considered the debt against West as still subsisting.-Turnipseed v. Cunningham, 16 Ala. 508; Locke's Executor v. Palmer, 26 Ala. 322; Russell v. Southard, 12 Howard, 139; Brown v. Dewey, 1 Sandford's Ch. R. 57; Bacon v. Brown, 19 Conn. 34. 5. That, if the evidence even left it doubtful whether a mortgage or a conditional sale were intended, it would be held a mortgage.-Locke's Executor v. Palmer, 26 Ala. 322, and cases there cited. JAS. B. MARTIN and M. J. TURNLEY, contra, insisted, 1. That, admitting that the transaction, on the face of the West and Wife v. Hendrix. deed and bond, might be construed either a mortgage or a conditional sale, its true character was to be determined by the intention of the parties, as ascertained from the attendant circumstances.-Poindexter v. McCannon, 1 Dev. Eq. R. 372; Freeman v. Baldwin, 13 Ala. 246; McKinstry v. Conly, 12 ib. 678. 2. That there can be no mortgage, where there is no mortgage debt to be secured.-Conway's Executors v. Alexander, 7 Cranch, 218; 2 Edwards' Ch. R. 143; McKinstry v. Conly, supra. 3. That the evidence shows that the debt against West was extinguished, and that no new debt was created.-Powell on Mortgages, vol. 1, p. 335. RICE, J.-A mortgage is essentially a security for a debt. When no debt exists, a mortgage is impossible.-Conway v. Alexander, 7 Cranch, 218; Chapman v. Hughes, 14 Ala. Rep. 218. When a conveyance is made in satisfaction of a precedent debt, it cannot take effect as a mortgage, 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.-Poindexter v. McCannon, 1 Devereux's Eq. Rep. 373; Holmes v. Grant, 8 Paige, 243; Robinson v. Cropsey, 6 Paige, 480; same case, 2 Edw. Ch. Rep. 138; McKinstry v. Conly, 12 Ala. Rep. 678; Freeman v. Baldwin, 13 Ala. R. 246; Goodman v. Grierson, 2 Ball & Beatty's Ch. Rep. 274. 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 a 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 re-purchase at a future day, for the same price, or for an advanced price.-Glover v. Payne, 19 Wend. R. 518; Brown v. Dewey, 2 Barb. Sup. Ct. Rep. 28; Williams v. Owen, 5 My. & Cr. 303; Flagg v. Mann, 14 Pick. Rep. 467. The fact that the party executing a conveyance, absolute in its terms, intended and considered it as a mortgage, is not. sufficient to make it a mortgage. To produce that effect, West and Wife v. Hendrix. such must have been the clear and certain intention and understanding of the other party likewise.--Holmes v. Fresh, 9 Missouri Rep. 200; Chapman v. Hughes, 14 Ala. R. 218; Hickman v. Cantrell, 9 Yerger, 172; 4 Kent's Com. 142; McDonald v. McLeod, 1 Iredell's Eq. Rep. 221. Inadequacy of price or consideration, alone, will not convert an absolute conveyance into a security for the repayment of money.-Conway v. Alexander, supra; Holmes v. Fresh, supra; Lane v. Dickerson, 10 Yerger, 373; Moss v. Green, 10 Leigh, 251, and cases therein cited by Parker, J. The transaction which the complainants allege to be a mortgage, occurred on the 26th June, 1847, between the defendant, Hendrix, and the complainant Sarah, who was then unmarried and known by the name of Sarah Smith. The debt, which it is alleged was intended to be secured by the transaction, was a debt for $53 71, due to Hendrix by John C. West, by account. Hendrix receipted the account as follows, "Rec'd the above fifty-three dollars and seventy-one cents, in full, of J. C. West, pr. Sarah Smith. J. M. Hendrix, 26 June, 1847." The account, thus receipted, was surrendered to Sarah Smith; and she executed the absolute deed to Hendrix, and received from him an instrument, a copy of which is shown in 'Exhibit A' to the bill. There was no debt between Sarah Smith and Hendrix, and no loan. After this transaction, we cannot see from the evidence, how Hendrix could have compelled payment, either from Sarah Smith or John C. West. The evidence is insufficient to authorize us to say that the debt of John C. West to Hendrix was not satisfied by this transaction, or that any new debt was created. The rule is, that when there is a deed absolute in its terms, and the right of redemption is denied by the answer, a court of equity will not treat it as a mortgage, unless the proofs are clear, consistent, and convincing, that it was not an absolute purchase, and that the object of the transaction in its original construction, as understood by both parties, was to create a security for money.-Chapman v. Hughes, supra; Freeman v. Baldwin, supra; Bryan v. Cowart, 21 Ala. Rep. 92; Brantley v. West, 27 Ala. Rep. 552; Franklin v. Roberts, 2 Iredell's Eq. Rep. 560; Lane v. Dickerson, 10 Yerger, 373; Moss v. Green, supra. Hair et al. v. Little et al. Our opinion is, that the transaction was not a mortgage, but a sale accompanied by an agreement to re-sell on the payment of $55 91, on or before the 1st day of January next after the sale.-Hickman v. Cantrell, 9 Yerger, 172; Lane v. Dickerson, 10 Yerger, 373. The decree of the chancellor is affirmed, at the cost of the appellants. 28 236 100 275 28 236 136 507 28 236 1140 141 HAIR ET AL. vs. LITTLE ET AL. [TRESPASS QUARE CLAUSUM FREGIT ET DE BONIS ASPORTATIS.] 1. Admissibility of parol evidence to affect consideration clause of deed. Where the consideration expressed in a deed is a certain sum of money in hand paid, parol evidence is admissible to show that only a part of the money was paid, and that the balance was to be applied in discharge of certain debts due from the grantor to third persons. 2. Objection to competency of witness, when raised.—An objection to the competency of a witness on the ground of interest, when known at the time of filing cross-interrogatories, must be distinctly made before the witness is ex amined. 3. Declarations explanatory of possession.—The declarations of a party in actual possession of personal property, tending to explain his possession, are admis sible evidence as part of the res gestæ. 4. Liability of joint trespassers.-In trespass against two, if the evidence authorizes exemplary damages against one, the other, if he is shown to have acted in concert with him, is liable to the same extent. 5. What is abstract charge.-A charge is not abstract, when there is any evidence, however weak, at all tending to support it. 6. Burthen of proving fraud.-Where plaintiff and defendant both claim under purchases from the same person, by conveyances valid on their face, the party alleging fraud in the purchase of the other is bound to prove it; but when one of the conveyances is impeached for fraud, the burthen of proof is changed, and the evidence of fraud must be overcome by counter evidence of bona fides. 7. Measure of damages. In trespass for taking and carrying off slaves, the court charged the jury, "that, if they found for the plaintiffs, the measure of damages would be the highest value of the slaves at any time between the taking and the trial; that, in addition to this value, they might allow interest thereon, or might look to the value and hire as some guide in coming to a conclusion, but were not bound by them": Held, that the charge was not erroneous. |