Downs v. Downs

60 So. 2d 686, 257 Ala. 643, 1952 Ala. LEXIS 309

• Court: Supreme Court of Alabama
• Decided: October 9, 1952
• Docket: 6 Div. 329
• Status: Published

Opinion

SIMPSON, Justice.

This is a suit in equity by appellant for specific performance of an oral agreement to execute a mortgage or to declare and establish an equitable lien on personal property. The question of the sufficiency of the bill is not raised on this appeal. On a final hearing the trial court denied relief and dismissed the bill. The decree must be affirmed.

The evidence was substantial that whatever debt was owing the plaintiff by the defendant had been paid. While this was, of course, controverted by the plaintiff, the trial court concluded against her contention. So under the favorable presumption attending such a ruling on testimony heard ore tenus before the trial judge, this court will not reverse. Rodgers v. Thornton, 254 Ala. 66, 46 So.2d 809.

It is also to> be pointed out that the agreement contended for by the bill was unenforceable under the statute of frauds. An oral agreement to execute a written mortgage is unenforceable in equity either by way of specific performance or as an equitable mortgage. Palmer v. James, 210 Ala. 641, 99 So. 109; Williams v. Davis, 154 Ala. 422, 45 So. 908; Code 1940, Title 20, § 2.

Affirmed.

LIVINGSTON, C. J., and FOSTER and GOODWYN, JJ., concur.