Hammett v. White

128 Ala. 380

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

SHARPE, J.

Prima facie, tlie bill shows the deed from complainant to defendant ivas given and accepted for the single purpose of securing a loan; that the so-called rent notes were given upon a like consideration, it being agreed that payment thereof should be considered as payments on the loan and not for the use of land. The alleged transactions did not constitute complainant defendant’s tenant, nor does it establish any relation which estops the complainant, though in possession of the land, to invoke the jurisdiction of equity which exists to declare the deed a mortgage and to redeem.

To ascertain the true intent and meaning' of the several alleged agreements the chancery court well go behind the writings if enabled to do so by competent evidence.

It is not essential to the equity of the bill for it to allege a previous tender of the sum admitted to be due on the alleged mortgage, nor is it required that such sum be brought into court on the filing of the bill. — McGuire v. Van Pelt, 55 Ala. 344; McCalley v. Otey, 90 Ala. 302.

The decree will be affirmed at appellant’s cost.

Affirmed.