Wilkerson v. Tillman , 66 Ala. 532 ( 1880 )

BRICKELL, O. J.

The original bill was filed to foreclose a mortgage on lands, executed by the appellees on the 14th day of February, 1874, for the purpose, as recited, of securing a promissory note of even date therewith, made by the mortgagors, for the payment to the mortgagee, Tillman, of six hundred and eight dollars, on the ensuing first day of October. .It is further recited, that the note “ was given for advances in necessary provisions, horses, mules, farming implements, and in money to purchase the same, obtained by us from "WV L. Tillman, bona fide, for the purpose of making a cropand it is declared, “ that said advances, or the amount thereof, shall be a lieu on our entire crop grown on our entire plantation in Russell county, Alabama, this year, to make which they were procured, and on the stock fur-. nished, or which we may buy with the money so advanced.” The note, dated January, 1874, recites, as its consideration, provisions, and declares such provisions were obtained from W. L. Tillman, “ to enable us to make a crop and supply our families, and without such advances it would be impossible for us to make a crop.”

The defense is, that the note and mortgage were given as a security for advances to be made to the mortgagors (who were husband and wife), to enable them to make a crop, and to supply their family during the year 1874; that advances to the amount less than that specified in the note and mortgage were made, and that full payment of them had been made. The mortgagee claims, that the consideration of the note was not wholly and exclusively advances, but a preexisting debt, contracted for former advances, which was included in the amount expressed in the note and mortgage. Whether this fact can be proved by parol, is the material point of controversy.

The point was not involved, nor was it considered, as is insisted by the counsel for the appellee, in Forsyth v. Preer, 62 Ala. 443. There, a promissory note was given for an aggregate sum, not reciting a particular consideration ; and a mortgage, merely describing it, was taken to secure its payment. The consideration of the note was shown to be a pre-existing debt, and a sum intended to cover future advances, which it was contemplated the mortgagees would make, and which they in fact made the mortgagors. The mortgage was declared a valid security, not only for the preexisting debt, but also for the subsequent advances.

Upon a bill to foreclose, or to redeem, the consideration of the mortgage debt is open to inquiry. Parol evidence will be received, to show a want, or failure, or illegality of consideration. It is also admissible, to establish a consideration of the same kind, and not inconsistent with that which may be expressed in the mortgage, or in the evidence of the debt when that is in writing. All contracts in writing, for the payment of money, import a valuable consideration ; and if they are silent as to the particular consideration, proof of any valuable consideration may be made by parol, without infringing the rule that written shall not be varied, altered, or added to, by parol evidence. The proof of the real consideration — that it was not only an existing debt, but future advances — in the case referred to, was merely, proof the particular consideration, none being recited, and was not in contradiction of, or inconsistent with, the recital of a particular consideration. General recitals of consideration, in contracts, or conveyances of any kind, are not conclusive, and it is well settled that they are open to explanation by parol evidence. — 2 Whart. Ev., § 1040.

There can be no question, now, that 'the consideration clause in a deed is open to the utmost latitude of inquiry, whether it is general or special in its recitals. The only limitation, which the authorities in this court have fixed, is, that the consideration shall not be altered in character — that the consideration proved, shall not be inconsistent with that recited. There may be a seeming difference of opinion, as to what is, or is not, inconsistent with the recitals of the deed; some cases indicating that the recital of a particular, negatives the existence of any other consideration, though it may be of the same character. The cases more especially directed to the point now under consideration, hpld that, as the recital of the true, or of the whole consideration, is not essential to the validity of the deed, it is presumable that but little attention was given to its recitals in this respect; and that when the ends of justice require it, the true or the whole consideration may be proved by parol.—Eckles v. Brown, 26 Ala. 563; Thomas v. Barker, 37 Ala. 392; McGehee v. Rump, Ib. 651; Henry v. Murphy, 54 Ala. 255.

In McGehee v. Rump, supra, it was said: “ The decided weight of the modern authorities, as our after citations will show, is, that the consideration clause of a deed is open to the influence of parol proof, except for two purposes; first, it is not permissible for a party to prove a different consideration, if such change vary the legal effect of the instrument ; and second, the grantor in a deed, who acknowledges the receipt of payment of the consideration,' will not be allowed, by disproving the fact, to establish a resulting trust in himself.”

The argument of the appellant’s counsel is, that the parol evidence is addressed, not solely to an explanation of the consideration of the note and mortgage, but that its real effect is to convert the mortgage from a security for the debt particularly expressed in it, into a security for another and different debt. The mortgage is a security for no other debt, than that which was in contemplation of the parties when it was executed. There may be other existing debts, of equal meritorious consideration; but, if the parties did not intend the security of the mortgage to attach, it can not be extended to them; nor could it be competent to show, by parol, that it was intended to embrace them, unless, on a bill to reform, it could be shown that their omission was by mistake or fraud. The evidence here, however, is intended to show that there was but one debt, of which the note described in the mortgage was the evidence, and that the consideration of the note was not only present and future advances, but also a pre-existing debt. There is no effort to attach the security to any other debt than that expressed, but to show a larger valuable consideration for the note, than advances present or future — a pre-existing debt. It is simply shown that there was another consideration for the note and mortgage, than that expressed, of the same kind, and as capable of supporting it. The legal effect and operation of the mortgage is not varied, nor are the relations of the parties changed.

The evidence showing that the mortgagors had made payments, equal to the advances received, they asserted and claimed an extinguishment of the mortgage security. The answer is, that the advances have been paid, but the mortgage debt is not extinguished. Its consideration was not only the advances, but a pre-existing debt of a particular amount. The parol evidence was admissible; and we concur in the finding of the chancellor, that it shows satisfactorily that the consideration of the note and mortgage was not- only advances, but the pre-existing debt, the validity of which is undisputed.

Affirmed.