Harrison v. Maury

• Decision Date: 25 November 1908
• Citation: 47 So. 724,157 Ala. 227
• Parties: HARRISON ET AL. v. MAURY ET AL.
• Court: Alabama Supreme Court

47 So. 724

157 Ala. 227

HARRISON ET AL. v. MAURY ET AL.

Supreme Court of Alabama

November 25, 1908

Appeal from Chancery Court, Choctaw County; Thomas H. Smith Chancellor.

Suit by George W. Harrison and others against E. N. Maury and others. From a decree for defendants, complainants appeal. Affirmed.

Elmore & Harrison and W. F. Glover, for appellants.

O. L Gray and Taylor & Hearin, for appellees.

HARALSON J.

The parties to the appeal are agreed as to the purposes of the bill filed in the case. Appellants' counsel say in brief "The bill in this case seeks to have an absolute conveyance declared a mortgage."

The appellees' counsel say, that the bill is "to construe an absolute deed a mortgage."

The proceedings are obscured by much pleading and evidence, but when reduced to its real purpose, the bill may be brought and considered within the limits as stated. Four bills appear in the transcript, the last one having been filed on the 7th of October, 1904. This bill is filed as a substitute for the others previously filed. The complainants state, in paragraph 2 of this last bill, that "they have heretofore exhibited in this honorable court original and amended bills of complaint against this respondent which they refer to and ask that this be taken and considered as a substitute to said original and amended bills of complaint, which is filed as an amended and substituted bill to said original and amended bills. The chancellor by an order allowed this bill to be so filed. In his final decree he states, that substantially four separate bills have been filed in this case, the first filed July 15, 1903, the second, July 25, 1903, the third, September 29, 1903, the fourth (which is the amended and substituted bill), October 7, 1904. "This last is a full statement of complainants' case, and is complete without reference to those previously filed, except in its reference to certain exhibits to the other bills. Its sole purpose is to have a deed declared a mortgage and to be allowed to redeem. The answer presents that issue. The testimony is taken under it."

The law is well settled, that "in a court of equity, the character of the conveyance must be determined by the clear and certain intention of the parties; and if there be an agreement between them that it shall operate as a security for a debt, it can and will operate only as a mortgage. The agreement may be expressed in the deed, or in a separate writing, or it may rest in parol. * * * Where the conveyance is absolute, and the controversy is, whether the parties contemplated an unconditional sale or a mortgage, the party claiming that it was intended as a mortgage,...