Kramer v. Brown

• Decision Date: 08 April 1897
• Citation: 114 Ala. 612,21 So. 817
• Parties: KRAMER v. BROWN ET AL.
• Court: Alabama Supreme Court

21 So. 817

114 Ala. 612

KRAMER v. BROWN ET AL.

Supreme Court of Alabama

April 8, 1897

Appeal from chancery court, Mobile county; W. H. Tayloe, Judge.

Suit by Minerva Brown and others, as heirs of Melinda Gaillard deceased, against Leopold Kramer, to have a deed absolute on its face, executed by said Gaillard to defendant, declared a mortgage, and for redemption therefrom. Decree for complainants. Defendant appeals. Affirmed.

The execution of the deed was the outcome of a proposition made by Melinda Gaillard to the defendant, Leopold Kramer, to save for her the property conveyed in the deed, from a sale under the execution. The respondent consented to pay the execution on condition that Melinda Gaillard would execute to him the deed in question; making at the same time an agreement, which is copied in the opinion.

McIntosh & Rich, for appellant.

D. B Cobbs, for appellees.

McCLELLAN J.

The only question arising on this appeal is one of fact, namely whether the transaction wherein and whereby Kramer took a deed absolute on its face from Melinda Gaillard, and entered into a written agreement to return the deed to her if she repaid him certain money he had expended for her, within three years from the time of such expenditure, was a conditional sale or a mortgage. We do not propose to discuss the evidence at all in detail, but merely to advert to one or two principles of law pertinent to the inquiry of fact, and to announce our conclusion from the facts considered in the light of such principles. This is not an effort to have an absolute deed declared to be a mortgage, and the strictness of proof required to support a bill for that purpose is not requisite here. Taking into consideration the agreement to return the deed to the grantor if she paid certain money within a certain time, there is no absolute deed in the case and the question is between a conditional sale and conveyance, on the one hand, and a mortgage, on the other. In such case not only is a less degree of stringency in the evidence adduced to show a mortgage instead of a conditional sale necessary, but the inclination of courts is to construe the writing to be a mortgage rather than a sale. Peagler v. Stabler, 91 Ala. 308, 9 So. 157; Daniels v Lowery, 92 Ala. 519, 8 So. 352; Reeves v. Abercrombie, 108 Ala. 538, 19 So. 41. The agreement which the grantee entered into itself tends strongly to show that there was a continuing debt...