Haynie v. Robertson , 58 Ala. 37 ( 1877 )

STONE, J.

It is unquestionably the law, that parties may make their own contracts, in their own terms, and compel their performance as made, or recover damages for their breach, unless they infringe some rule of law, or of public policy. When contracting, they may mould the terms to suit their own conveniences and tastes. . The law clothes them with power to buy, to sell, to make and receive mortgages, and to make sales, reserving the privilege to repurchase. Courts are guardians of people who are sui juris, not for the purpose of pronouncing their contracts wise or unwise, but for the purpose of protecting them in the enjoyment of their legal rights and civil independence. I profess myself no advocate of any dogma, which says to the citizen, laboring under no civil disability, “This form of contract is more advantageous to you than that, and therefore I will strain legal intendments at the expense of your intention, that you may be relieved of the hardships of a bargain you probably intended to make.” The intention of contracting parties, gathered from the terms of their contract, must control in its interpretation, if that intention violate no principle of law. If we fall below this standard, we make contracts rather than interpret them.

A mortgage is, in equity, a hypothecation or pledge of property for the security of a debt. There must be a debt, or there can be no security for its payment. Hence it issaid, if there is no debt, there can be no mortgage. Debt, in this connection, means a duty or obligation to pay, for the enforcement of which an action will lie. In McKinstry v. Conly, 12 Ala. 678, it was said, in effect, that whether a transaction was a mortgage or conditional sale, depended on the inquiry, did the party have a remedy for the recovery of the money on a debt? Was there a legal liability which would support an action? And in Pe&ples v. Stolla, at the December term, 1876, we said, “ The effect of a mortgage made by one capable in law of executing such 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.”

A mortgagee, it is said, has three remedies, and can prosecute one or all of them. He can sue for the debt, as a debt, can maintain ejectment for the recovery of tbe premises, and can also maintain a suit in eqriity to foreclose the mortgage. Doe, ex dem. v, McCloskey, 1 Ala. 708. Cumulative authority that there must be a debt, which will support an action at law, to uphold a mortgage. See also, Murphy v. Barefield, 27 Ala. 634; West v. Hendrix. 28 Ala. 226; Swift v. Swift, 36 Ala. 147; Beck v. Blue, 42 Ala. 32; Robinson v. Farelly, 16 Ala. 472.

In the present ease, it is manifest that Hibbs retamed no debt against Chambers. The latter only bargained for the privilege of repurchasing. He was under no legal obli'-gation to do so. Hibbs could maintain no action against him for not payilig the money, and could not have foreclosed the contract as a mortgage. The transaction was a sale, with the privilege to repurchase, reserved to the seller.- Conway v. Alexander, 7 Cranch, 219; Flagg v. Mann, 14 Pick. 467; Taylor v. Cornelius, 60 Penn. St. 187; Weed v. Snow, 1 Mich. 128; Knowlton v. Walker, 13 Wis. 264; Ruffin v. Womack, 30 Texas, 332; Robinson v. Willoughby, 65 N. C. 520; Sharkey v. Sharkey, 47 Mo. 543.

Some authorities are not strictly reconcilable with these views, but we decline to follow them.-See Heath v. Williams, 30 md. 495; Dow v. Chamberlain, 5 McLean, 281; ,Pertsoncan v. Pulliam, 47 Ill. 58.

Decree of the Chancellor affirmed.