Nelson v. Wadsworth , 171 Ala. 603 ( 1911 )

ANDERSON, J.

The bill in this case, as last amended, was filed to declare a deed a mortgage and to cancel same, or to redeem if said mortgage has not been satisfied. The bill avers that the instrument was given to secure, and not to discharge, a debt, and that both parties understood and intended that the transaction was a mortgage to secure the payment of a debt then existing and a further sum to be advanced. “One of the distinguishing tests by which to determine whether an instrument is a-mortgage, or a. sale with the privilege of repurchasing, is the existence or nonexistence of a debt to be secured. If there be no'debt due from the grantor to the grantee, there can be no mortgage. The idea of a mortgage without a debt to be secured by it is a legal myth in our system of jurisprudence.”—Vincent v. Walker, 86 Ala. 336, 5 South. 465; Douglass v. Moody, 80 Ala. 61.

And to convert an instrument, on its face a conditional sale, into a mortgage, the intention and understanding of.both parties to such instrument must be shown to have concurred that it should so operate.—West v. Hendrix, 82 Ala. 226; Douglass v. Moody, supra. “An instrument cannot operate, at one and the same time, as a mortgage and a conditional sale; these two classes of conveyance being chiefly distinguished by the existence of a debt in the former and its nonexistence in the latter. Where, however, the repugnancy of the provisions and the accompanying evidence render its character doubtful, it will accordingly be construed a mortgage, rather than a conditional sale — at least, where such a construction will operate equitably, by securing to the grantor or creditor his debt, with interest, and enable the grantor or debtor to effect a repurchase of his land.”—Vincent v. Walker, supra; Rapier v. Gulf City Paper Co., 77 Ala. 126; Crews v. Threadgill, 35 Ala. 334.

And the fact that the consideration is greatly less than the value of the property is an element, for consideration in determining the question whether there is a debt in existence to be secured.—West v. Hendrix, supra; Rapier v. Gulf City Paper Co., supra.

The averments of the present bill are sufficient to convert the conveyance in question into a mortgage.

Nor was the bill demurrable upon the theory of laches or staleness, as it sets up that the mortgagor remained in possession of the land through himself or tenants until the year 1901.

A demurrer to a bill for want of proper parties should state the names of the parties omitted.—Chambers v. Wright, 52 Ala. 444. Orie Moncrief and Loyd McCord are not omitted from the bill, as set up in the first ground of respondent’s demurrer.

The bill, as last amended, avers that the estate of J. H. Nelson owed no debts, and there was no necessity for an administration, and the personal representative was not a necessary party, and the bill was properly filed by the heirs. 3 Mayfield’s Dig. p. 253, § 1400, and cases there cited.

It may be that so much of the bill as last amended as seeks to set up usury in the mortgage debt may be insufficient, as it neither sets up the rate of interest charged nor the amount of usurious interest.—Powell v. Crawford, 110 Ala. 294, 18 South. 302. But the only demurrer raising the question goes to the whole bill, and not this part of it, and a.demurrer to a bill as a whole cannot be sustained, if for any equity appearing in the bill the complainants are entitled to relief.—MacMahon v. MacMahon, 170 Ala. 338, 54 South. 165; Beall v. Lehman Durr Co., 110 Ala. 446, 18 South. 230. And this rule applies,, also, to the thirteenth ground of demurrer, relating to rents.

The chancery court erred in sustaining the demurrers to the bill as last amended, and in dismissing same; and the decree is reversed, and one is here rendered overruling the demurrers and setting aside the dismissal, and the cause is remanded.

Reversed, rendered, and remanded.

Mayfield, Sayre, and Somerville, JJ., concur.