Martin v. Martin

• Decision Date: 30 June 1899
• Citation: 123 Ala. 191,26 So. 525
• Parties: MARTIN ET AL. v. MARTIN.
• Court: Alabama Supreme Court

26 So. 525

123 Ala. 191

MARTIN ET AL. v. MARTIN.

Supreme Court of Alabama

June 30, 1899

Appeal from chancery court, Macon county; Jere N. Williams Chancellor.

Bill by Isabel V. Martin and her husband against H. M. Martin to have a deed declared a mortgage. From a decree ordering the bill dismissed, complainants appeal. Affirmed.

The defendant, H. M. Martin, was the surety, together with J. G McAndrew, for complainants, on a debt they owed the Bullock County Bank and one Leary, for over $6,000. To secure them against loss on account of this suretyship, the complainants gave to defendant and said McAndrew, a mortgage on their plantation of 880 acres, known as the Dawson place, the same being the lands involved in this litigation, and on the Smith, and McCall places, the first containing 853, and the latter 320 acres.

In the year 1884, the complainants leased their lands to defendant for six years from 1885 to 1890 both inclusive, for 126 bales of cotton. He gave notes for this rent, covering the entire rent period, and shortly afterwards, he and McAndrew, his co-surety on said indebtedness of complainants to the Bullock County Bank and Leary, agreed to buy said rent notes, and so they did, for $2,500, and the money was paid to the Bullock County Bank, as a credit on complainants' debt to said bank.

On the 17th of February, 1887, there remained due on said indebtedness to the bank and Leary the sum of $1,909. On that day, the defendant having paid for complainants said sum remaining due on said indebtedness, the complainants, in consideration thereof, executed to him, as they agreed to do to procure him to pay said debt, an absolute deed, with covenants of warranty, to the Dawson place.

On the 19th of February, 1887, two days after the said absolute deed was executed by complainants to defendant, the defendant executed to them a paper by which he agreed to give complainants the privilege of redeeming the lands which had been conveyed to him, in 10 years, provided they should pay to him all money spent by him for taxes, and $1,909, purchase money, and interest at 10 per cent. per annum from date of the agreement; and with the further understanding that in the event complainants redeemed the lands before the lease that defendant held on the place should expire, the first of 1891 the redemption should in no wise interfere with the said lease, but the same was to continue in force and effect, the same as if said agreement had not been entered into.

The complainants file this bill to have said deed declared a mortgage; that the defendant be charged with the rents income and profits arising from said land, and if anything should be due on the alleged mortgage debt, that they be allowed to pay the same to defendant, and if it be ascertained that the debt has been overpaid, that a decree be rendered in their favor therefor. The other facts of the case are sufficiently stated in the opinion.

On the final submission of the cause on the pleadings and proof, the chancellor rendered a decree denying the relief prayed for in the bill and ordering the bill dismissed.

From this decree the complainants appeal, and assign the rendition thereof as error.

J. D. Norman, for appellants.

Watts, Troy & Caffey, for appellee.

HARALSON J.

The legal principles upon which the insistence of complainants rests, are well understood and may be briefly stated. In Peeples v. Stolla, 57 Ala. 53, 58, it was said, "The effect of a mortgage, made by one capable in law of executing such a contract is to leave on the mortgagor a personal liability for the residuum of the debt, if on foreclosure, the property mortgaged fails to yield a sum sufficient to pay it in full. Hence, one of the tests by which to determine whether or not a mortgage was intended, is the existence or not of a debt to uphold it. If there is no debt, there can be no mortgage. On the other hand, security for a debt is incompatible with the idea of a conditional sale; and when shown to exist, is conclusive that the transaction is a mortgage." Haynie v. Robertson, 58 Ala. 37.

In West v. Hendrix, 28 Ala. 226, often since approved it was held, "When a conveyance is made in satisfaction of a precedent debt, it cannot take effect as a mortgage, although containing a redemption clause; for the previous debt being extinguished, and no new one created, one of the essential attributes of a mortgage is wanting. *** When a deed is made for a...