Glover v. McGilvray , 63 Ala. 508 ( 1879 )

BEICKELL, C. J.

As between the parties, a mortgage of ■chattels may be created by parol, and will be valid. No special words' are necessary to its creation. It is enough that the transaction clearly indicates an intention and agreement that the chattel shall stand as a security for a debt. Morrow v. Turney, 35 Ala. 131. Whether it was part of the contract of sale, or a subsequent agreement, that the defendant should have a mortgage on the mule, and that the plaintiff would return it to him, if the note for the purchase-money was not paid when due, a mortgage was created, and the defendant had the right to the possession of the mule on the failure of the plaintiff to pay the debt. It was not an agreement to give a mortgage in the future, the parties intended, but a present security, to the operation of which, no other or further act was necessary.

Though a note in writing was given for the purchase-money, not expressing that there was a security for its payment, the oral evidence of the mortgage was not inconsistent with, or repugnant to it. Contracts may rest partly in writing, and partly in parol; and when but a part of the contract is reduced, or intended to be reduced to writing, the independent part, not incorporated in the writing, may be proved by parol. — 2 Whart. Ev. § 1015. Besides, the evidence tended to show that the mortgage was created subsequent to the giving of the note, and was a separate contract. The parties could by parol modify the contract, and such modification needs no new consideration to support it. — Thomason v. Dill, 30 Ala. 444.

There is no error in the record, and the judgment must be affirmed-.'