Perdue v. Bell

• Citation: 83 Ala. 396,3 So. 698
• Parties: PERDUE v. BELL.
• Decision Date: 16 February 1888
• Court: Alabama Supreme Court

3 So. 698

83 Ala. 396

PERDUE v. BELL.

Supreme Court of Alabama

February 16, 1888

Appeal from chancery court, Lowndes county; S. K. MCSPADDEN Chancellor.

Bill in equity to have absolute conveyance declared a mortgage, and for account and redemption, filed by George Perdue against N J. Bell. Judgment in favor of defendant, and complainant appeals.

Richardson and Watts & Son, for appellant.

W R. Houghton, for appellee.

CLOPTON J.

The bill, which is filed by appellant, alleges that the deed executed by him to appellee, February 17, 1883, was intended and received solely as a security or mortgage for the payment of $300 with 20 per centum interest thereon, and seeks to have the amount due ascertained, an account of the rents taken, and that complainant be allowed to redeem the land in controversy. The bill further alleges that the debt originated in transactions commencing in 1878, and continuing to the time of making the deed, which consisted of purchases of goods and merchandise from the defendant, for which he charged exorbitant prices and usurious interest; and that, on February 17, 1883, the defendant claiming that complainant was indebted to him on account of these transactions in the sum of $300, he executed to the defendant a conveyance of the land, absolute in form, to secure the payment of the same, and that on the same day, and as part of the same transaction, the defendant executed to him "a certificate of some sort to the effect that the defendant would deed back and allow your orator to redeem said lands at any time within five years, upon your orator paying to the defendant the sum of three hundred dollars aforesaid. That said transaction was a security to the defendant of the said alleged debt claimed by him of your orator." The instrument, which the proof shows was in fact executed by defendant, is as follows: "This is to certify that I agree to sell and deed to George Perdue, for the sum of three hundred dollars, any time during the lease of the said 'Perdue Place,' leased to him for the term of five years, said rent to cease when the purchase is made and executed. I hereby bind my heirs and representatives, for the payment of three hundred dollars, to make, or cause to be made to George Perdue, his heirs and representatives, the deed to said land." This instrument, though informally drawn, is, in legal effect, an agreement to sell and to make title on payment of the stipulated sum at any time within the stipulated period. The deed and the separate instrument, when construed as a single transaction, import a sale of the land by the complainant to the defendant, with a reservation of the right to repurchase. It is apparent that there is a material variance between the effect of the certificate alleged in the bill to have been made by the defendant, and of the instrument proved. The claim is that though the instrument expresses, in terms, an agreement to resell, and to make titles on the repurchase being completed, it was intended and understood that the deed should operate as a security or mortgage for the payment of the sum recited therein as the consideration price of the land. Without deciding whether the variance should be regarded as fatal, and pretermitting the question whether parol evidence is admissible to vary the legal import of the express terms of the written instruments, we will, for the purposes...