Hubert v. Sistrunk

• Decision Date: 17 November 1910
• Citation: 53 So. 819
• Parties: HUBERT v. SISTRUNK.
• Court: Alabama Supreme Court

53 So. 819

HUBERT v. SISTRUNK.

Supreme Court of Alabama

November 17, 1910

Appeal from Chancery Court, Macon County; L. D. Gardner, Chancellor.

Suit by G. W. Sistrunk against John W. Hubert. From a decree overruling demurrers to the bill, defendant appeals. Reversed, rendered, and remanded.

Oscar Lewis, for appellant.

H. P Merritt, for appellee.

EVANS J.

The bill in this case was filed by complainant, G. W. Sistrunk against John W. Hubert et als., as respondents, in the chancery court of Macon county, to be allowed to redeem a certain piece of land conveyed by complainant to respondent John W. Hubert, on the 24th day of August, 1906; and afterward conveyed by said Hubert to the other respondents. The conveyance from complainant to respondent, Hubert, was, in form, an absolute deed. At the same time the said conveyance was executed by complainant to Hubert, the said Hubert executed a contract to the said complainant to reconvey said lands to said complainant at the end of three years from the date of the written contract, provided he should pay to said Hubert a certain sum with interest on, or before, the day on which this three years expired. The bill does not specifically allege that the conveyance was a mortgage, nor does it pray to have the said conveyance declared a mortgage. It simply states the facts of the transaction, and then asks to be allowed to redeem and for general relief. To the bill as thus filed, the respondents filed two demurrers, one to the effect that there is no equity in the bill, the other setting up seven special grounds attacking the bill as though filed for the purpose of compelling the respondent, Hubert, to specifically perform his contract to reconvey. The chancellor, upon consideration of these demurrers, held the bill good as against them, and overruled said demurrers. From this decree the said John W. Hubert appeals to this court, and assigns as error the ruling of the court upon each demurrer and ground of demurrer.

The appellant here, respondent in the court below, contends that the bill is a bill to enforce the specific performance of the contract to reconvey; while the appellee, complainant below, contends that the purpose of the bill is to have the deed declared a mortgage and that he be allowed to redeem the lands thereby conveyed. And, in fact, the fate of this bill, and the demurrers thereto, depend upon what is the true interpretation of the bill. If it is a bill to have the deed absolute on its face declared a mortgage, the ruling of the chancellor must be sustained; but, if it is a bill for the specific performance of the contract to reconvey, then the decree of the chancellor overruling the demurrers must be reversed, for the reason that the bill states that no part of the sum of money agreed upon for a reconveyance has ever been paid, nor was it ever tendered within the time stipulated. The payment of the money, within the time stipulated, being a condition precedent to the reconveyance, the reconveyance could not be insisted upon, unless the condition precedent had been performed. While on the other hand, if the deed, though absolute on its face, was in fact a mortgage, the date for the payment of the debt having passed, could not cut off complainant's equity of redemption. The real question, then, raised by this bill and the demurrers thereto is this: Was the transaction set forth by the allegations of the bill, when considered by a court of equity, a mortgage, or was it a sale, with the privilege to repurchase, reserved to the seller?

It has often been said by the courts of last resort, that, in cases of doubt as to whether a particular transaction was a mortgage or a conditional sale, the courts will not hesitate to declare the transaction a mortgage. If such language, used by the courts, is to be strictly construed, and held to mean exactly what it says, then the right to make a conditional sale is practically abrogated; for the reason that the matter being open to parol testimony as to what happened at the time, or before, or afterwards, with reference to it, certainly some doubt or suspicion either real or imaginary could be thrown on nearly every such transaction, and either party, according to his interest, might come into a court of equity and have the transaction declared a mortgage, for certainly the same rules would obtain for each. If there had been a conditional sale, or, rather, a sale with the privilege to repurchase reserved to the seller, and the lands should fall in value below the price agreed upon for reconveyance, and the original seller was known to be solvent, the grantee could come into court, cast some doubt, however small, upon the character of the transaction, as whether it was a mortgage or a conditional sale, and have it declared to be a mortgage; have it foreclosed and the proceeds credited upon the amount found to be due, and then make the residue out of other property of the respondent in the suit. So we conclude that the courts have not meant what they have said on that subject; but that they meant by the word "doubt," that if weight of the evidence pro and con on the subject is about equally balanced, they will not then hesitate to pronounce the transaction a mortgage rather than a conditional sale; or, more strictly speaking, where real estate is the property conveyed, a sale with the privilege reserved to the seller to repurchase within a given time for a given sum.

We must not lose sight of the fact that courts have no right to contract for parties who are sui juris, and that the courts are bound in the first instance to undertake honestly to ascertain what the contract between the parties really was. The courts are not the guardians of people for the purpose of seeing that they shall always make contracts beneficial to themselves. A person sui juris may make any contract he pleases, so far as the law is concerned, provided "it infringes no rule of law or of public policy." In business, as in all the other relations of life, one does well if he does not act the fool more than once about the same thing, or in the same way. Experience is the only instructor that makes one remember the instruction given. While the law will not tolerate fraud or deceit, as defined by the law, and will make correction as against accident or mistake in certain contingencies, yet, it cannot undertake to patch up the results of the bad judgment of men. We thoroughly concur with what was said by Mr. Justice Stone in the case of Haynie, Adm'r, v. Robertson, 58 Ala 39, when he wrote as follows: "It is unquestionably the law that parties may make their own contracts, in their own terms, and compel their performance as made, or recover damages for their breach, unless they infringe some rule of law or public policy. When contracting, they may mold the terms to suit their own convenience and tastes. The law clothes them with power to buy, to sell, to make and receive mortgages, and to make sales, reserving the privilege of repurchase. Courts are guardians of people who are sui juris, not for the purpose of pronouncing their contracts wise or unwise, but for the purpose of protecting them in the enjoyment of their legal rights and civil independence. I profess myself no advocate of any dogma, which says to the citizen, laboring under no civil disability, 'This form of contract is more advantageous to you than that, and therefore I will strain legal intendments at the expense of your intention, that you may be relieved of the hardships of a bargain you probably intended to make.' The intention of the contracting parties, gathered from the terms of their contract, must control in its interpretation, if that intention violate no principle of law. If we fall below this standard, we make contracts rather than interpret them." In the case above referred to and quoted from, the transaction was similar to the transaction now under consideration, and the writings evidencing the transaction were, in effect, the same as in this, viz., a deed, absolute in form, from complainant to respondent, with a contract executed by respondent, at the same time, to reconvey to complainant upon the payment of a stipulated sum within a certain time. The facts in that case had a stronger tendency to show that a mortgage was intended than in this; but, the court decided that the transaction was a sale, as it purported to be on its face, with the privilege to repurchase reserved...