Peagler v. Stabler

• Decision Date: 07 April 1891
• Citation: 9 So. 157,91 Ala. 308
• Parties: PEAGLER v. STABLER ET AL.
• Court: Alabama Supreme Court

9 So. 157

91 Ala. 308

PEAGLER v. STABLER ET AL.

Supreme Court of Alabama

April 7, 1891

Appeal from chancery court Lowndes county; JOHN A. FOSTER Chancellor.

Watts & Son, for appellants.

Clements & Brewer, for appellee.

COLEMAN J.

In December, 1884, appellees, who were complainants in the court below, borrowed from appellant $2,400, for which they made their two promissory notes, one payable December, 1885, and the other, December, 1886, and to secure the loan the borrowers executed a mortgage on certain lands and mules. On the 26th of December, 1887, the debt not having been paid the complainants executed a deed of conveyance of the lands and personal property absolute in form to Peagler, the appellant, the consideration expressed being for the debt secured by the mortgage, and a debt of $151, due from J. J Stabler, but which individual debt of J. J. Stabler was not any part of the mortgage debt. Peagler rented the lands to J. J. Stabler, and four of the mules, for the year 1888, which rent was paid, and he rented the lands again to him, and a part of the mules, for the year 1889. In September, 1889, the mortgagors filed their bill in the chancery court, praying that the deed of conveyance be declared a mortgage, and be foreclosed, or they be allowed to redeem. By a long line of decisions it is fully established that a deed absolute on its face may be shown by parol to have been intended to operate as a mortgage, but to give an absolute deed this effect the proof must be clear and convincing. Parish v. Gates, 29 Ala. 261; Mitchell v. Wellman, 80 Ala. 19. The maxim of equity that once a mortgage, always a mortgage, is also fully recognized. McKinstry v. Conly, 12 Ala. 682. Courts of equity are not favorable to conditional sales; and, if it be doubtful whether the transaction was a conditional sale or a mortgage, the courts incline to hold that the agreement was intended to be a mortgage. Turner v. Wilkinson, 72 Ala. 365; Crews v. Threadgill, 35 Ala. 343. Courts of equity regard with great jealousy any attempt to destroy or embarrass the exercise of the right of redemption, and this principle of protection of the equity of redemption, and extends equally to the statutory right of redemption, which may be exercised subsequent to a foreclosure, as to the equity of redemption, which exists prior to a foreclosure. The maxim that once a mortgage, always a mortgage, or the principle of protection afforded to the equity of redemption, was never intended, and has never been construed by our courts, to prevent a mortgagee, by contract subsequent to the execution of the mortgage, from purchasing from the mortgagor the equity of redemption, or obtain a release of the statutory right of redemption if fairly made, and for adequate consideration. Circumstances may be such as to render such a sale mutually beneficial, and entirely optional on the part of the mortgagor, uninfluenced by the relation of the parties. McKinstry v. Conly, supra; Parmer v. Parmer, 74 Ala. 288; 3 Add. Cont. § 1026. Parol proof, as stated, is admissible to show that an absolute conveyance was intended to be a mere security, but parol proof is not admissible to show that an absolute conveyance was intended to operate as a conditional sale or a sale with the right to repurchase. It is only when the writings, whether executed as a whole or in separate instruments, express what purports to be a conditional sale, are considered with parol evidence, that courts incline to construe the instruments to be a mortgage, rather than a conditional sale, or if the instruments be absolute in form, and it be admitted there was a contemporaneous agreement, different from that expressed in the writings, such admission may be important, in weighing the parol evidence offered to show that the conveyance, though absolute in form, was intended to operate as a mortgage. Daniels v. Lowery, (Ala.) 8...