Kramer v. Brown , 114 Ala. 612 ( 1896 )

McCLELLAN, J. —

The only question arising on this appeal is one of fact, namely, whether the transaction .wherein and whereby Kramer took a deed absolute on its face from Malinda Gaillard and entered into a written agreement to return the deed to her ' if she repaid him.certain money he had expended for her, within three years from the time of such expenditure, was a conditional sale or a mortgage. We do not propose to discuss the evidence at all in detail, but merely to advert to one or two principles of law pertinent to the inquiry of fact, and to announce our conclusion from the facts considered in the light of such principles. This is not an effort to have an absolute deed declared to be a mortgage, and .the strictness of pro'of required to support a bill for that purpose is not requisite here. Taking into consideration the agreement to return the deed to the, grantor if she paid certain money within a certain time, there is no absolute deed in. the case ; and the question is between a conditional sale and conveyance on the one and a mortgage oh the other. In such case not only is a less degree of stringency in the evidence adduced to show a mortgage instead of a conditional sale necessary, but the inclination of courts is to construe the writing to be a mortgage rather than a sale. — Peagler v. Stabler, 91 Ala. 308; Daniels v. Lowery, 92 Ala. 519 ; Reeves v. Abercrombie, 108 Ala. 538. The agreement which the grantee entered into itself tends strongly to show that there was a continuing debt from Malinda Gaillard to Kramer, and that the purpose of the transaction was to secure the payment of this debt. This is the writing by Kramer ': ‘ ‘Agreement, as agreed by me at the time of the sale of her house in 1891. Malinda gave me deed of her house for money paid by me to .the sheriff, etc., the same to be restored to her if she pays me the money with interest within three years after date of redemption.” There was thus a certain sum of money to be repaid with interest, and upon such payment there was not to be a reconveyance by Kramer to Malinda as would have been proper and natural and necessary upon a repurchase by her, but the deed was to be surrendered to her as is proper; natural and sufficient in case of the payment and satisfaction of á mortgage. And the testimony of Frenkle, Kramer’s witness, tended to show that the sole purpose of the transaction was to secure the repayment to Kramer of the money advanced by him to Malinda, and that it took the form it did solely to save the expense of foreclosing a mortgage. When to this is added the testimony of the several witnesses examined 'for complainants, going to show that there was a continuing debt, and that the deed was given merely to secure its payment, we have no difficulty in concurring in the conclusion reached by the chancellor ; and his decree is affirmed.

Affirmed.