Knaus v. Dreher

• Decision Date: 29 May 1888
• Citation: 84 Ala. 319,4 So. 287
• Parties: KNAUS v. DREHER.
• Court: Alabama Supreme Court

4 So. 287

84 Ala. 319

KNAUS v. DREHER.

Supreme Court of Alabama

May 29, 1888

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

James J. Garrett, for appellant.

Smith & Lowe, for appellee.

STONE C.J.

Dreher and wife, by absolute deed, executed, witnessed, and delivered, conveyed land to Knaus, with customary covenants of warranty. The deed was executed December 2, 1882. The present suit, instituted in March, 1885, is a bill seeking to have this deed declared a mortgage security for the payment of money, avers that the debt has been paid and, if mistaken, tenders payment of any balance, and prays that title be divested out of Knaus and vested in Dreher. It seeks relief only as to one undivided half of the land described in the pleadings, admitting that the other half is both legally and equitably the property of Knaus. Cases of this class have been very often before this court, and it has been uniformly held that such claim may be established by parol proof, if sufficiently clear and strong to meet the requirements of the rule. But, to entitle a complainant to relief in such cases, the testimony must be clear consistent, strong, and convincing. It has sometimes been said it must be stringent. McKinstry v. Conly, 12 Ala. 678; Chapman v. Hughes, 14 Ala. 218; Bryan v. Cowart, 21 Ala. 92; Brantley v. West, 27 Ala. 542; Harris v. Miller, 30 Ala. 221; Phillips v. Croft, 42 Ala. 477; Parks v. Parks, 66 Ala. 326; 2 Brick. Dig. 272, §§ 319, 320. There is an additional element which enters into such inquiry. To establish the proposition that the conveyance, absolute in form, was in intention and in fact only a mortgage security, there must be a continuing binding debt from the mortgagor to the mortgagee to uphold it,-a debt in its fullest sense. Not a mere privilege reserved in the grantor to pay or not at his election, but a debt which the grantee can enforce as a debt, and for its collection may foreclose the conveyance as a mortgage. Where there is no debt there can be no mortgage; for, if there is nothing to secure, there can be no security. Eiland v. Radford, 7 Ala. 724; West v. Hendrix, 28 Ala. 226; Swift v. Swift, 36 Ala. 147; Peeples v. Stolla, 57 Ala. 53; Haynie v. Robertson, 58 Ala. 37; Logwood v. Hussey, 60 Ala. 417; Douglass v. Moody, 80 Ala. 61; Perdue v. Bell, 3 South. Rep. 698; 1 Jones, Mortg. § 267. The oral testimony in the case be fore us is in lamentable conflict. Conflict, not alone as to the main inquiry, whether it was agreed that the conveyance should operate only as a mortgage, but as to the attendant facts which, if believed, tend collaterally to fortify or weaken the testimony bearing directly on the main question. It is difficult to credit this discrepancy to honest mistake or imperfect memory. Only the parties to the conveyance testify to any actual knowledge, whether there was an agreement before the deed was executed that it should only operate as a mortgage, and their testimony is in direct conflict. Many, very many, witnesses testify that Knaus admitted he was to reconvey half the land to Dreher, when the latter should repay to him his half of the purchase money; but many, and the most important, of these witnesses, were closely related to Dreher, and were frequent inmates of his household. Some of the most damaging of these alleged admissions are testified to have been made by Knaus at and near Birmingham between the 22d and 27th of December, 1883, and the witnesses state circumstances calculated to fortify their recollection of dates. Against this, many witnesses, not related to either of the parties, testify that during all that time Knaus was at Broken Arrow, 35 or 40 miles distant from Birmingham, and they testify to circumstances calculated to impress the fact and the time upon their memories. Knaus denies all these imputed admissions, and testifies that he was not at or near Birmingham, but was at Broken Arrow, and did not see any of these witnesses during the time they testify he made the admissions. Looking alone at the oral testimony, it is doubtful if it be sufficiently "clear, consistent, and convincing" to overcome the presumptions which are raised by the absolute conveyance. There are important facts in the case, about which we have discovered no conflict in the testimony. Early in the year 1880 a contract was entered into between King, former owner, and Dreher, individually, by which the latter contracted to purchase from the former the lot of land-10 acres-which is...