Everett v. Estes

• Citation: 189 Ala. 60,66 So. 615
• Decision Date: 07 November 1914
• Docket Number: 649
• Parties: EVERETT v. ESTES.
• Court: Alabama Supreme Court

66 So. 615

189 Ala. 60

EVERETT v. ESTES.

No. 649

Supreme Court of Alabama

November 7, 1914

Appeal from Chancery Court, De Kalb County; W.H. Simpson, Judge.

Suit by W.A. Everett against J.W. Estes, to declare an absolute deed of mortgage. From a judgment for defendant, complainant appeals. Affirmed.

Isbell & Scott, of Ft. Payne, for appellant.

Davis &amp Baker, of Ft. Payne, for appellee.

SAYRE J.

This record presents the inevitable conflict in the testimony and somewhat of the familiar difficulty of determining as a fact the intention of the parties, where the prayer is that a deed, absolute in form, be declared a mortgage. Upon due consideration of the evidence we have reached the conclusion that the chancellor's decree denying relief should be affirmed. Nothing is to be accomplished by a discussion of the evidence in its last detail, but, since the parties are each seriously insistent upon their respective views, we will briefly state the grounds of our conclusion.

Appellant was indebted to the estate of Martha Sloane, deceased, in the sum of $370, secured by a mortgage on his 80-acre tract of land, and the administrator of that estate had advertised a foreclosure under the power of sale contained in the mortgage. It is very well established, and not denied, that appellant approached appellee with a view to a sale of the entire tract at a proposed price of $14 an acre; but appellee's means were limited; he would himself have to borrow the money with which to make the trade and did not care to assume so large a burden of debt. However, after some negotiation, appellee agreed to take a deed of 40 acres of the tract at a price of $500. The money was paid, enough to the administrator to satisfy the mortgage held by him, the balance along with the mortgage was handed over to appellant and a deed was duly executed and delivered to appellee. There is no question but that this deed was just what the parties intended it should be, so far as its terms are concerned. Appellant's contention that the money was advanced as a loan, and that the deed was intended to operate as a security only, rests upon his own testimony and that of divers witnesses who testify that, on several occasions after the transaction in question, appellee stated that appellant had the right to redeem. Testimony of this character is not usually considered as of much weight in cases like this. Rodgers v. Burt, 157 Ala. 91, 47 So. 226; Reeves v. Abercrombie, 108 Ala. 535, 19 So. 41. Appellee denied that the transaction was anything other than the absolute sale evidenced by the deed, and denied also the statements attributed to him.

The fact that appellee borrowed the money he paid for and to appellant, and that he took a conveyance of only one-half of the tract appellant was trying to save from foreclosure, and that the antecedent mortgage was delivered up to appellant goes far towards establishing the reasonableness and truth of appellee's insistence that the transaction was a sale and not a mortgage, while appellant's admission and proof by witnesses that the asserted right of redemption was expressly limited to be exercised by him alone seems to concede that the alleged right of redemption was in fact contracted for as a mere privilege or option of repurchase rather than as an assignable property right retained by him as mortgagor. Indeed, upon appellant's testimony as a whole, and apart from the countervailing evidence adduced by appellee, it appears that appellant has hardly been able to make out a prima facie case in consonance with the averments of his bill. Testifying as a witness in his own behalf, he would go...