Williams v. Davis

HARALSON, J.

It seems that prior to the act of January 22, 1885 (Acts 1885, p. 93), carried, into Code 1896 as section 2151, an equitable mortgage of personal property might be created by a verbal agreement. — Shelburne v. Letsinger, 52 Ala. 96.

The Act of 1885, referred to, changed this rule. It provided, that hereafter, “all mortgages on personal property hereafter taken shall be invalid, unless in writing and subscribed by the mortgagor.” — Barnhill v. Howard, 104 Ala. 412, 16 South. 1.

The facts of the case, as alleged in the bill, show that no mortgage was ever executed by the defendant. The most that can be said is, that the defendant verbally agreed to execute the papers sought to be enforced. The prayer of the bill is, that defendant, Davis, “be required to execute and deliver to complainant said mortgage notes as originally agreed upon. And if respondent fails to sign said mortgage notes, may your honor order, adjudge and decree that the contract as set forth in said mortgage notes shall be as binding npon respondent as if he had signed them at the time and on the date agreed upon; and that complainant have the same rights and remedies for the collection of said mortgage notes, or for the enforcement of said liens in said mortgage notes in a court of law as if the respondent had personally signed the same.”

It is not conceivable that the transaction between the complainant and the respondent amounted to anything more than a verbal agreement to make a mortgage, void in law and in equity. An agreement not in writing, to make a mortgage, is at most, in equity, a verbal mortgage.

In the unsigned notes set out as a foundation for the suit, it is recited what was intended, if the notes were executed, a waiver of homestead and other exemptions, “including realty we now have or may hereafter possess.” If this could by any means be construed, if the notes had been executed, as a conveyance of the realty, yet the notes not having been signed, it was, as to the realty referred to, if the defendant had any, only a verbal agreement to mortgage; occupying no higher position than a verbal agreement to give a mortgage on personal property. — Brown v. Van Winkle Co., 141 Ala. 580, 39 South. 245, 6 L. R. A. (N. S.) 585. It was not a conveyance of real estate. A mortgage is defined to be “a conveyance or transfer of property, either real or personal, as security to pay a debt or in discharge of some other obligation.” — 20 Am. & Eng. Ency. Law (2d Ed.) 897, 900; Mervine v. White, 50 Ala. 389.

We find no error in the decree below, and it is affirmed.

Affirmed.

Anderson, Denson and McClellan, JJ., concur.