CLOPTON, J.
The bill alleges that the conveyance to the one-half interest in the lands, mentioned therein, executed by complainant to the defendants, though absolute in form, was intended as security for the payment of money, borrowed by him from them, which he agreed to pay, with the bonus, by September 25, 1880. The answers of the defendants deny any loan of money, or such agreement; but aver that the understanding was, that complainant should have the right to repurchase on payment of the stipulated amount within the time specified. Therefore, it is an admitted fact in the case, that the transaction was not an absolute, unconditional sale ; but that, by a contemporaneous parol agreement, the deed was delivered on conditions not expressed therein, by a compliance with which the complainant had a right to re-acquire title to the lands. The point of contention is, whether the qualified right is a right of repurchase, or of redemption.
Whether a parol agreement, that the grantor shall have the right to repurchase, where the conveyance is absolute, is void under the statute of frauds, it is not necessary to consider. The question does not arise. It is well settled, that parol evidence is admissible to show, that a deed apparently absolute was intended as a mortgage. The requisite degree of proof varies as the controversy may be, whether an unconditional sale or a mortgage, and whether a conditional sale or a mortgage, was intended.' In the former case, the evidence must be clear and convincing; in the latter, courts of equity are inclined to con[67]*67sider the transaction as a mortgage. — Turner v. Wilkinson, 72 Ala. 361. The complainant will be given the benefit of the' rule last stated, in the consideration of the evidence. The rule, however, does not create a presumption of law, that such transaction is a mortgage, nor does it east on defendants the burden of proving, that it is a conditional sale, as appellant’s counsel insist. The extent of the rule is, when on an examination of the entire evidence, the intention of the parties remains in doubt, the court leans to the construction in favor of a mortgage, not because of any presumption of law, but on the conservative and equitable ground, that such construction will probably be less injurious in its results, and more generally promotive of the purposes of equity. The concurring intention of the parties at the time of making the transaction, determines its character; and this intention must be collected, if it reasonably can, from the attendant facts and circumstances.
The complainant alleges, that he never saw or heard of the written memorandum, which was recorded with the deed, until long after it was recorded, and the defendants had refused to allow a redemption of the lands, and that he never consented to the terms therein expressed. The defendants concede, that it did not constitute a part of a written contract, and was prepared after the delivery of the conveyance, for their private use, to preserve an accurate statement of the terms, having been recorded by inadvertence or mistake. As the memorandum was not made contemporaneously with the deed as a part of the transaction, and as complainant is not a party thereto, it is not obligatory on him, nor is it evidence against him. But if he chooses to treat it as evidence of an admission of a conditional execution of the conveyance, it must also be regarded as evidence of the terms and character of the condition, receiving the consideration, to which, in the opinion of the court, it may be entitled. The memorandum may, therefore, be eliminated from the case as a contract, or part of the transaction. If eliminated, there is no written defeasance, from which, as interpreted and illustrated by the other facts and the surrounding circumstances, the intention of the parties may be ascertained. The issue is distinctly presented, resting exclusively on parol evidence, whether the agreement was, that the deed should stand as security for the payment of money loaned, or was a mere right to repurchase ; and must be determined on the evidence, as any other fact involved in a judicial investigation.
Without respect to the form, a conveyance of lands, which is intended as security for a contemporaneuos loan of money, equity regards as a mortgage. The right of redemption attaches to such conveyance as an inseparable incident. To invoke the application of the doctrine, a loan and an intended [68]*68security must be shown by sufficient evidence, though it may be circumstantial. That the transaction originated in a negotiation for a loan of money ; great disparity between the value of the property and the price paid ; and the continuance of a debt for which the grantor is liable, are usually regarded criteria of primary importance, in determining the question. Though the existence of either is a strong circumstance, the concurrence of all is not conclusive, but devolves on the grantee the burden to rebut the presumptions arising therefrom by clear and convincing evidence. — Turner v. Wilkinson, supra. The fact is conceded, that complainant’s first proposition was for a loan of money, to be secured by a lien on the lands in controversy, which was repeated several times, and on different occasions. If the evidence of the defendants be believed, the propositions were promptly declined as often and when made; and after an iuterval of some days, the complainant proposed to one of the defendants to sell the lands with the right to repurchase, which offer was finally accepted, and a sale consummated. The value and weight of the circumstance, that the first propositions were for a loan, depend upon the ascertainment, whether the negotiation was continuing or had terminated, and the offer to sell became and was a separate and independent proposition, consequent on the failure to obtain a loan ?
Comparing the respective versions of the parties, the defendants’ appears the most natural and rational as a business transaction; considering it, as exhibited in complainants’ testimony — a continuous negotiation for a loan from its inception to its consummation — the reason stated by him for giving an absolute deed is unsatisfactory. If a mortgage had been offered, and an indefeasible conveyance demanded, there would have been plausibility in his explanation, and consistency in Lbs version of the negotiations. But without offering a mortgage, or making any inquiry, he voluntarily gave an unconditional conveyance in form, because of an alleged belief, that the defendants would not accept a mortgage, by reason of an apprehension that his wife might have some claim to the property, which was purchased by him at a register’s sale, and the legal title to which was vested in him ; as if the one mode of conveyance would be more effectual, against a just claim of the wife than the other, each being signed by her. No evidence of a loan was taken, or requested, or offered. While a bond, bill, or note, or any written evidence of a debt is not requisite, and proof of a loan itself proves a debt, the absence of such independent evidence is a circumstance, going to show a conditional sale, and that payment is optional, the value being dependent upon its connection with the attendant facts and cir[69]*69cumstances. — Mo. B. & L. Asso'n. v. Robertson, 65 Ala. 382; Conway v. Alexander, 7 Cr. 218. Neither can it be said, that the necessities of the complainant put him at a disadvantage in making the transaction. It does not appear that he needed the money because of financial misfortunes and embarrassments, nor to meet urgent demands and necessities.
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CLOPTON, J.
The bill alleges that the conveyance to the one-half interest in the lands, mentioned therein, executed by complainant to the defendants, though absolute in form, was intended as security for the payment of money, borrowed by him from them, which he agreed to pay, with the bonus, by September 25, 1880. The answers of the defendants deny any loan of money, or such agreement; but aver that the understanding was, that complainant should have the right to repurchase on payment of the stipulated amount within the time specified. Therefore, it is an admitted fact in the case, that the transaction was not an absolute, unconditional sale ; but that, by a contemporaneous parol agreement, the deed was delivered on conditions not expressed therein, by a compliance with which the complainant had a right to re-acquire title to the lands. The point of contention is, whether the qualified right is a right of repurchase, or of redemption.
Whether a parol agreement, that the grantor shall have the right to repurchase, where the conveyance is absolute, is void under the statute of frauds, it is not necessary to consider. The question does not arise. It is well settled, that parol evidence is admissible to show, that a deed apparently absolute was intended as a mortgage. The requisite degree of proof varies as the controversy may be, whether an unconditional sale or a mortgage, and whether a conditional sale or a mortgage, was intended.' In the former case, the evidence must be clear and convincing; in the latter, courts of equity are inclined to con[67]*67sider the transaction as a mortgage. — Turner v. Wilkinson, 72 Ala. 361. The complainant will be given the benefit of the' rule last stated, in the consideration of the evidence. The rule, however, does not create a presumption of law, that such transaction is a mortgage, nor does it east on defendants the burden of proving, that it is a conditional sale, as appellant’s counsel insist. The extent of the rule is, when on an examination of the entire evidence, the intention of the parties remains in doubt, the court leans to the construction in favor of a mortgage, not because of any presumption of law, but on the conservative and equitable ground, that such construction will probably be less injurious in its results, and more generally promotive of the purposes of equity. The concurring intention of the parties at the time of making the transaction, determines its character; and this intention must be collected, if it reasonably can, from the attendant facts and circumstances.
The complainant alleges, that he never saw or heard of the written memorandum, which was recorded with the deed, until long after it was recorded, and the defendants had refused to allow a redemption of the lands, and that he never consented to the terms therein expressed. The defendants concede, that it did not constitute a part of a written contract, and was prepared after the delivery of the conveyance, for their private use, to preserve an accurate statement of the terms, having been recorded by inadvertence or mistake. As the memorandum was not made contemporaneously with the deed as a part of the transaction, and as complainant is not a party thereto, it is not obligatory on him, nor is it evidence against him. But if he chooses to treat it as evidence of an admission of a conditional execution of the conveyance, it must also be regarded as evidence of the terms and character of the condition, receiving the consideration, to which, in the opinion of the court, it may be entitled. The memorandum may, therefore, be eliminated from the case as a contract, or part of the transaction. If eliminated, there is no written defeasance, from which, as interpreted and illustrated by the other facts and the surrounding circumstances, the intention of the parties may be ascertained. The issue is distinctly presented, resting exclusively on parol evidence, whether the agreement was, that the deed should stand as security for the payment of money loaned, or was a mere right to repurchase ; and must be determined on the evidence, as any other fact involved in a judicial investigation.
Without respect to the form, a conveyance of lands, which is intended as security for a contemporaneuos loan of money, equity regards as a mortgage. The right of redemption attaches to such conveyance as an inseparable incident. To invoke the application of the doctrine, a loan and an intended [68]*68security must be shown by sufficient evidence, though it may be circumstantial. That the transaction originated in a negotiation for a loan of money ; great disparity between the value of the property and the price paid ; and the continuance of a debt for which the grantor is liable, are usually regarded criteria of primary importance, in determining the question. Though the existence of either is a strong circumstance, the concurrence of all is not conclusive, but devolves on the grantee the burden to rebut the presumptions arising therefrom by clear and convincing evidence. — Turner v. Wilkinson, supra. The fact is conceded, that complainant’s first proposition was for a loan of money, to be secured by a lien on the lands in controversy, which was repeated several times, and on different occasions. If the evidence of the defendants be believed, the propositions were promptly declined as often and when made; and after an iuterval of some days, the complainant proposed to one of the defendants to sell the lands with the right to repurchase, which offer was finally accepted, and a sale consummated. The value and weight of the circumstance, that the first propositions were for a loan, depend upon the ascertainment, whether the negotiation was continuing or had terminated, and the offer to sell became and was a separate and independent proposition, consequent on the failure to obtain a loan ?
Comparing the respective versions of the parties, the defendants’ appears the most natural and rational as a business transaction; considering it, as exhibited in complainants’ testimony — a continuous negotiation for a loan from its inception to its consummation — the reason stated by him for giving an absolute deed is unsatisfactory. If a mortgage had been offered, and an indefeasible conveyance demanded, there would have been plausibility in his explanation, and consistency in Lbs version of the negotiations. But without offering a mortgage, or making any inquiry, he voluntarily gave an unconditional conveyance in form, because of an alleged belief, that the defendants would not accept a mortgage, by reason of an apprehension that his wife might have some claim to the property, which was purchased by him at a register’s sale, and the legal title to which was vested in him ; as if the one mode of conveyance would be more effectual, against a just claim of the wife than the other, each being signed by her. No evidence of a loan was taken, or requested, or offered. While a bond, bill, or note, or any written evidence of a debt is not requisite, and proof of a loan itself proves a debt, the absence of such independent evidence is a circumstance, going to show a conditional sale, and that payment is optional, the value being dependent upon its connection with the attendant facts and cir[69]*69cumstances. — Mo. B. & L. Asso'n. v. Robertson, 65 Ala. 382; Conway v. Alexander, 7 Cr. 218. Neither can it be said, that the necessities of the complainant put him at a disadvantage in making the transaction. It does not appear that he needed the money because of financial misfortunes and embarrassments, nor to meet urgent demands and necessities. lie desired it for the purpose of making an investment in other lands, from which he anticipated a speedy and large profit.
It may be admitted that the testimony shows disparity between the value of the lands and the consideration paid. They were mineral lands, their market value dependent, in a great measure, on locality and facilities of transportation. The entire lands were offered for sale several times by the register under a decree of the Chancery Court, when no bid was obtained which he was willing to report; and when last offered in April, 1879, were purchased by. the complainant and two other persons for fourteen hundred dollars. At the time of the transaction between the parties, they were not in demand ; and their value was prospective. Ordinarily, only those who are financially able to wait future developments could or would purchase. In such case, the opinions of witnesses can not be weighed with nicety and exactness. The subsequent advance in value, arising from unforseen, adventitious circumstances, has no retroactive effect on the character of a past transaction. Inadequacy of consideration, alone, is not sufficient to convert an absolute conveyance into a mortgage.— West v. Hendrix, 28 Ala. 226.
We will not tediously and unnecessarily extend this opinion, by reviewing all the details and circumstances disclosed by the evidence, or the subsequent conduct of the parties. The complainant stands alone, while his testimony, is contradicted by both of the defendants, who are sustained by two other witnesses. Conceding that the parties stand on an equal footing as to interest, and according to all the witnesses, truthfulness and honesty of purpose, the conclusion most favorable to complainant is, that he regarded the transaction as creating a mortgage, and the defendants regarded it as a conditional sale. ¥e have said, the eoneurring intention of all the parties determines the character of the transaction, and when ascertained, must prevail. “ It is not the intention of the one party, dissociated from the intention of the other, which is to be ascertained.” The mutual assent of the parties is essential to the completion of a contract. The ascertainment of different intentions and different understandings does not make^a “doubtful case,” in which equity will construe the transaction to be a mortgage. In West v. Hendrix, supra, it is said : “ The fact that a party executing a conveyance, absolute in its terms, in[70]*70tended and considered it as a mortgage, is not sufficient to make it a mortgage. To produce that effect, such must have been the clear and certain intention and understanding of the other party likewise.” If there be no concurring intention, no parol condition attaches, and in such case, the conveyance must prevail.- — Peeples v. Stolla, 57 Ala. 53; Mo. B. & L. Asso’n v. Robertson, supra.
Upon a survey and examination of the whole evidence, we are forced to sustain the Chancellor’s finding of the facts, and to hold, that the transaction is a sale with condition to repurchase. It is said, this conclusion works a hardship to complainant. If so, it is his misfortune, that he suffered his eagerness to procure money for other speculative purposes to induce him to make such transaction. Persons capable, may make their own contracts, no rule of law being violated, and arrange the terms as their real or supposed interests and convenience may suggest. It is the province and duty of courts to interpret, and not to make contracts. Much injustice and hardship would be escaped if parties would truly express in writing the terms of such contracts as the present, instead of resting'their enforcement on parol evidence. — Haynie v. Robinson, 58 Ala. 37.
It is further urged, that should the court hold the transaction to be a conditional sale, the complainant is entitled to relief as to Friedman’s interest, and half of the amount agreed to bé paid on a re-purchase having been tendered to him within the stipulated time. The bill alleges, that the contract between the parties was a mortgage. On such bill, the complainant can obtain no relief founded on a conditional sale. — Swift v. Swift, 36 Ala. 147; Parish v. Gates, 29 Ala. 254.
Affirmed.