Bell v. Shiver

61 So. 881, 181 Ala. 303, 1913 Ala. LEXIS 143

• Court: Supreme Court of Alabama
• Decided: April 17, 1913
• Status: Published

Opinion

ANDERSON, J.

The preponderance of the evidence shows that the deed, unconditional on its face, was made to the respondent upon the consideration of $1,050, being the amount due the British & American Mortgage Company, and a note of $50 due Crosson, and that the execution of the deed released the complainant from any liability to the respondent for the sums paid by him to Crosson or the mortgage company, whether the evidence of these debts was marked satisfied or was transferred to Shiver. In other words, the evidence fails to fix any liability upon Bell to repay Shiver, except upon condition that he (Bell) chose to repurchase the land from Shiver. “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 xnortgage. 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.” Nelson v. Wadsworth, 171 Ala. 603, 55 South. 120.

The decree of the chancery court is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.