STONE, J.
The exception of complainant to a part of the witness Sherwood’s answer to the 13th cross-interrogatorv must be allowed. The interrogatory did not call for the declarations of Crews, and he had no authority to use' his own ex-parte statements, not called out by his adversary, as evidence in his own favor.
[2.] We also sustain the exceptions of defendant to the following portion of the witness Henry M. Elmore’s testimony : To all that portion of his answer to the 3d direct interrogatory, which assumes to relate what Threadgill said to Mm, as to the value of the land, what he could get for it, and that he (Threadgill) could obtain money from Crews, and thus save his land and have a home ; also, to the portions of Elmore’s answers to the 4th and 8th interrogatories, which are excepted to by defendant. The exception to the answer of the witness Alford to the 2d interrogatory in chief, we need not consider. If the fact which it tends to prove be material, it is amply established by other testimony, to which there was no objection or exception filed. The 5th interrogatory to the witness Alford elicited no information, and need not be considered.
[341]*341[3.] The answer to the 4th interrogatory is in this language : “ About the time Threadgill moved down upon the land, (date not remembered,) according to my best recollection, I told him, whenever he wanted to sell said land, at five dollars per acre, let me know it.” The question which called out this answer was objected to, and the answer excepted to before the chancellor. The only tendency which this testimony could have, was to show that, if Mr. Threadgill desired to make an absolute sale of his land, he was offered better terms by Mr. Alford than he secured from Mr. Crews. This, we suppose, is relied on as a circumstance tending to show that Mr. Threadgill did not in fact make an absolute sale. In this view, we doubt the legality of the evidence. The substance of the argument in its favor is, that because the contract which is sought to be set up was not a prudent one, or because another contract would have been more profitable, this is evidence tending to show that no such contract was in fact made. Considering the diversified pursuits of men, and the fact that the opinions of different persons upon the advantages of particular adventures, or the profits derived from particular pursuits, are almost as variant as the features of the human countenance, wre think such a rule would lead to endless confusion. — See Mobile Marine Dock and Mutual Ins. Co. v. McMillan & Son, 31 Ala. 711.
Under the view which we take of this case, as we shall hereafter more fully show, we deem it unnecessary to decide this question at this time. The controversy in this case is not whether the contract was a mortgage or an absolute sale. The defendant Crews does not deny that, by the terms of the contract as made, Threadgill was to have the right to redeem. He contends, however, that the contract was a conditional sale — not a mortgage — and that because Threadgill permitted the time to pass within which he was authorized to repurchase, he (Crews) now owns the property, relieved of the condition. So, whether the contract was a mortgage or a conditional sale, either supposition leaves to Mr. Threadgill a reasonable motive for preferring the arrangement with Mr. Crews, which still [342]*342left- him an opportunity to preserve his homestead, rather than an absolute sale to Mr. Alford.
[4.] The amendment to the bill constituted it a good bill to redeem, provided the contract is a mortgage. — See Nelson v. Dunn, 15 Ala. 501. Such amendment, when properly allowed, takes effect as of the time of the filing of the' bill. — Blackwell v. Blackwell, 33 Ala. 57.
[5.] The real issue between these parties is as follows : Threadgill co'ntends, that he borowed money from Mr. Crews, with which to "pay Mr. Elmore for the land, and executed a mortgage on the land to secure the repayment of the money; but that this mortgage, although intended only as security, was made in the form of an absolute deed. Crews contends, that he purchased the land absolutely, received an absolute conveyance from Threadgill and wife, but agreed to reconvey to him, provided he (Threadgill) would, by the first day of January next after-wards, pay him the money he had paid to Elmore, and 16 per cent, interest upon it.
In Locke v. Palmer, 26 Ala. 312, the Palmers, who were partners, obtained from Locke the sum of $3504 50, and executed to him an absolute conveyance of a quarter-section of land, two slaves, and other property. About two months afterwards, Mr. Locke executed to them a defeasance, which recited that, “it was agreed between the said ¥m. M. & ,B- D. Palmer and myself, (said Locke,) at the time of the execution of said conveyance, that if said ¥m.M. &B.D. Palmer, or their assigns, should, on or before the first day of January next, repay said sum,” &c., then he would reconvey to them said property, a part of which was household and kitchen furniture. He (said Locke) thereupon bound himself, “ if said ¥m. M. & B. D. Palmer,”- &c., “ shall, on or before the first day of January next, well and truly pay to me or my assigns said sum of money,” then to reconvoy said property to them. These transactions took place in the spring of the year 1845. The property remained in the possession of the Palmers for more than two years, they paying no rent or hire for the same; and in June, 1847, the property went into the possession of Mr. [343]*343Locke’s executors, he having died in the meantime. The bill to redeem was filed in 1852.
This court, affirming the decree of the chancellor, held, that the transaction was a loan of money on mortgage security, and not a sale of the property with condition to repurchase. The language of our predecessors was, “There are, in most cases of this character, no tests which will enable a court to determine, with anything like positive certainty, whether a mortgage or a conditional sale was intended; but the inclination of equity, in such cases, is always to lean against the latter, for the reason, that an error which converted the transaction into a mortgage would not be as injurious, as a mistake which changed a mortgage into a conditional sale; and this leaning is strongly manifested, wherever the contract had its origin in a proposition for a loan, or the relation of debtor and creditor existed between the parties; these circumstances being regarded as amongst the circumstances tending to show that a mortgage was intended.”
After alluding to the fact that “the buyer, instead of taking possession of the property, allowed it to remain with the seller without hire,” the court proceeded to add, “All these, and especially the possession of the property remaining with the seller, are inconsistent with the idea of an absolute sale. * * * Upon a careful examination of the whole evidence, we have great doubts whether the parties contemplated an absolute sale. The inclination of our mind is rather that security only was intended; and such being the fair result of the evidence, we are bound by the principles which govern courts of equity in this class of cases, to declare the contract a mortgage instead of an absolute sale.”
In Parish v. Gates, 29 Ala. 254, 261, we pointed out what we supposed a clerical error in the case of Locke v. Palmer, supra.
The case of Turnipseed v. Cunningham, 16 Ala.
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STONE, J.
The exception of complainant to a part of the witness Sherwood’s answer to the 13th cross-interrogatorv must be allowed. The interrogatory did not call for the declarations of Crews, and he had no authority to use' his own ex-parte statements, not called out by his adversary, as evidence in his own favor.
[2.] We also sustain the exceptions of defendant to the following portion of the witness Henry M. Elmore’s testimony : To all that portion of his answer to the 3d direct interrogatory, which assumes to relate what Threadgill said to Mm, as to the value of the land, what he could get for it, and that he (Threadgill) could obtain money from Crews, and thus save his land and have a home ; also, to the portions of Elmore’s answers to the 4th and 8th interrogatories, which are excepted to by defendant. The exception to the answer of the witness Alford to the 2d interrogatory in chief, we need not consider. If the fact which it tends to prove be material, it is amply established by other testimony, to which there was no objection or exception filed. The 5th interrogatory to the witness Alford elicited no information, and need not be considered.
[341]*341[3.] The answer to the 4th interrogatory is in this language : “ About the time Threadgill moved down upon the land, (date not remembered,) according to my best recollection, I told him, whenever he wanted to sell said land, at five dollars per acre, let me know it.” The question which called out this answer was objected to, and the answer excepted to before the chancellor. The only tendency which this testimony could have, was to show that, if Mr. Threadgill desired to make an absolute sale of his land, he was offered better terms by Mr. Alford than he secured from Mr. Crews. This, we suppose, is relied on as a circumstance tending to show that Mr. Threadgill did not in fact make an absolute sale. In this view, we doubt the legality of the evidence. The substance of the argument in its favor is, that because the contract which is sought to be set up was not a prudent one, or because another contract would have been more profitable, this is evidence tending to show that no such contract was in fact made. Considering the diversified pursuits of men, and the fact that the opinions of different persons upon the advantages of particular adventures, or the profits derived from particular pursuits, are almost as variant as the features of the human countenance, wre think such a rule would lead to endless confusion. — See Mobile Marine Dock and Mutual Ins. Co. v. McMillan & Son, 31 Ala. 711.
Under the view which we take of this case, as we shall hereafter more fully show, we deem it unnecessary to decide this question at this time. The controversy in this case is not whether the contract was a mortgage or an absolute sale. The defendant Crews does not deny that, by the terms of the contract as made, Threadgill was to have the right to redeem. He contends, however, that the contract was a conditional sale — not a mortgage — and that because Threadgill permitted the time to pass within which he was authorized to repurchase, he (Crews) now owns the property, relieved of the condition. So, whether the contract was a mortgage or a conditional sale, either supposition leaves to Mr. Threadgill a reasonable motive for preferring the arrangement with Mr. Crews, which still [342]*342left- him an opportunity to preserve his homestead, rather than an absolute sale to Mr. Alford.
[4.] The amendment to the bill constituted it a good bill to redeem, provided the contract is a mortgage. — See Nelson v. Dunn, 15 Ala. 501. Such amendment, when properly allowed, takes effect as of the time of the filing of the' bill. — Blackwell v. Blackwell, 33 Ala. 57.
[5.] The real issue between these parties is as follows : Threadgill co'ntends, that he borowed money from Mr. Crews, with which to "pay Mr. Elmore for the land, and executed a mortgage on the land to secure the repayment of the money; but that this mortgage, although intended only as security, was made in the form of an absolute deed. Crews contends, that he purchased the land absolutely, received an absolute conveyance from Threadgill and wife, but agreed to reconvey to him, provided he (Threadgill) would, by the first day of January next after-wards, pay him the money he had paid to Elmore, and 16 per cent, interest upon it.
In Locke v. Palmer, 26 Ala. 312, the Palmers, who were partners, obtained from Locke the sum of $3504 50, and executed to him an absolute conveyance of a quarter-section of land, two slaves, and other property. About two months afterwards, Mr. Locke executed to them a defeasance, which recited that, “it was agreed between the said ¥m. M. & ,B- D. Palmer and myself, (said Locke,) at the time of the execution of said conveyance, that if said ¥m.M. &B.D. Palmer, or their assigns, should, on or before the first day of January next, repay said sum,” &c., then he would reconvey to them said property, a part of which was household and kitchen furniture. He (said Locke) thereupon bound himself, “ if said ¥m. M. & B. D. Palmer,”- &c., “ shall, on or before the first day of January next, well and truly pay to me or my assigns said sum of money,” then to reconvoy said property to them. These transactions took place in the spring of the year 1845. The property remained in the possession of the Palmers for more than two years, they paying no rent or hire for the same; and in June, 1847, the property went into the possession of Mr. [343]*343Locke’s executors, he having died in the meantime. The bill to redeem was filed in 1852.
This court, affirming the decree of the chancellor, held, that the transaction was a loan of money on mortgage security, and not a sale of the property with condition to repurchase. The language of our predecessors was, “There are, in most cases of this character, no tests which will enable a court to determine, with anything like positive certainty, whether a mortgage or a conditional sale was intended; but the inclination of equity, in such cases, is always to lean against the latter, for the reason, that an error which converted the transaction into a mortgage would not be as injurious, as a mistake which changed a mortgage into a conditional sale; and this leaning is strongly manifested, wherever the contract had its origin in a proposition for a loan, or the relation of debtor and creditor existed between the parties; these circumstances being regarded as amongst the circumstances tending to show that a mortgage was intended.”
After alluding to the fact that “the buyer, instead of taking possession of the property, allowed it to remain with the seller without hire,” the court proceeded to add, “All these, and especially the possession of the property remaining with the seller, are inconsistent with the idea of an absolute sale. * * * Upon a careful examination of the whole evidence, we have great doubts whether the parties contemplated an absolute sale. The inclination of our mind is rather that security only was intended; and such being the fair result of the evidence, we are bound by the principles which govern courts of equity in this class of cases, to declare the contract a mortgage instead of an absolute sale.”
In Parish v. Gates, 29 Ala. 254, 261, we pointed out what we supposed a clerical error in the case of Locke v. Palmer, supra.
The case of Turnipseed v. Cunningham, 16 Ala. 501, if any difference can be discerned, presents a stronger case in favor of the doctrine, that courts incline to hold contracts to be mortgages rather than conditional sales, than [344]*344the case of Locke v. Palmer, supra. See, also, principles stated in Eiland v. Radford, 7 Ala. 724.
The above authorities must be regarded as settling a rule of property in Alabama, from which it is not now safe to depart.
In the case under consideration, if we were to leave out of view the testimony of the witness Elmore, and place our opinion alone on the admissions of the answer, and the testimony of the subscribing witnesses, it would be exceedingly difficult to distinguish this case in principle from Locke v. Palmer, supra. In aid of this, however, Ike witness Elmore testifies, that when Crews paid him the amount of Threadgill’s note, he (Crews) remarked to witness, that “ the land would be worth the money, if complainant (Threadgill) should not be able to pay him back the money. He (Crews) said, I (the witness) had ^advised complainant to sell the land to Alford — that he was determined Alford should not have it-^-tkat he had told complainant, long befoi’e, he would furnish him the money to pay me,” (the witness.) These declarations of Mr. Crews are perfectly consistent and harmonious with the facts, if the transaction was a loan of money by him to Mr. Threadgill. They do not accord with/what the defen d-' ant in his answer contends were the terms of the contract-"We also think it is fairly inferable from the weight of the evidence, that the land, at the time Crows paid the note to Mr. Elmore, was worth more than he gave; probably twice the amount.
This case, then, furnishes most of the evidences of a mortgage. It originated in a loan of money; the possession of the premises remained with the grantor, by the permission of the grantee; and the amount of money advanced was little, if any, more than half the then market value of the lands. Considering the ignorance of Mr. Threadgill, we think but little importance should be attached to the fact of his receipt of the note when it was sent to him, or to the remarks he then made. Upon a full consideration of all the facts and circumstances, and guided by the principles -settled in the cases of Turnipseed v. Cunningham, and Locke v. Palmer, supra, we [345]*345fully concur with the chancellor, in holding the deed of Mr. Threadgill to be a mortgage security for the payment of money. We find no error in the directions for taking the account. — Parish v. Gates, 29 Ala. 254.
The decree of the chancellor is affirmed.