Williamson v. Culpepper , 16 Ala. 211 ( 1849 )

CHILTON, J.

This agreement does not admit of the construction placed upon it by the County Court. Indeed it. is scarcely open for construction as to whether it was a conditional sale or security, since it expressly states that Culpepper holds the note “ as collateral security for the sum of two hundred and ninety-five dollars and four cents, due the 1st November 1846.” If, however, the subsequent provision in the contract, “ that on failure of the plaintiff in error to pay that sum on the day it falls due, the defendant was to hold the note on Portis’ as his own- property,” rendered it of doubtful import as to the intention of the parties, according to the rules of law by which we are to be governed in determining whether it was their intention to. create a security merely, or make a conditional sale, we have no difficulty in construing this tobe the former. 1st — The vendor continued bound for the debt which was collaterally secured by the note of Portis’. 2d The note on Portis was for double the amount of the demand secured, and 3d — The transaction commenced by borrowing-money. In Eiland, adm’r v. Radford, 7 Ala. Rep. 726, it is said, “ where any of these facts are found to exist, they go far to show, in a doubtful case, that a mortgage, and not a conditional sale was intended.” Much more then will the conclusion be strengthened when so many concur in establishing it. Davis v. Phelps, 7 Monroe, 635; Sewall v. Henry, 9 Ala. Rep. 24; Freeman v. Baldwin 13 Ala. Rep. 253-4.

The plaintiff brings his action of assumpsit, and says that the defendant in recovering the amount of the note from Por-tis has funds in his hands, after satisfying his demand against the plaintiff and the incidental expenses, to a considerable amount, which ex equo et bono belong to the plaintiff. "We think it no'answer to the action, that although the note on Portis was received as collateral security, yet on the plaiutiff’s failure to pay on a certain day, the note should belong to the defendant. This would amount to a forfeiture of double the amount of the, demand, which the law regards as odious. Besides, to hold that the absolute property in the recovery vested in the defendant in error by the default in this case, would be to decide that what was intended and expressed to be a security for a loan merely became a conditional sale, from the form of the instrument as respects the forfeiture. It is well settled, that if a mortgage contain a clause converting it into a deed, if a sum of money is not paid, it does not thereby become a deed upon the happening of the contingency. Rankin v. Mortimer, 7 Watts, 372; 6 ib. 126 ; 8 Mass. 159. We think it very clear that the plaintiff is entitled to recover for the excess, after paying the demand for which the note of Portis stood as collateral and the expeuses for collecting it. It follows that the charge asked should have been given, and that the court mistook the law in the charge given.

Judgment reversed, and cause remanded.-