McGowen, J.,
delivered the opinion of the court.
Appellees, J. C. Jordan and other children of T. N. Jordan, filed their bill in the chancery court of Harrison county against Mrs. Nellie B. Jordan, the widow of T. N. Jordan. The bill alleged that they, as the children, and Mrs. Nellie B. Jordan, appellant, as the widow, own as tenants in common certain land situated in that county; that T. N. Jordan died intestate, and that they, together with the defendant, each own a one-eleventh interest in said land. The bill further charged that, in his lifetime, T. N. Jordan, on the 7th day of April, 1913, executed a deed in favor of Mrs. E. M. Holt, the mother of the defendant, Mrs. Nellie B. Jordan, and that on the 10th day of February, 1916, said deed was acknowledged; that said deed
was executed in consideration of a sum of money loaned to Mm by Mrs. Holt; that tlio deed was executed on the agreement that the deed was to be in effect and operate as a mortgage on said real estate; that it was to be canceled upon the payment of the money. The deed was made an exhibit and was recorded on February 11, 1916. The bill further charged that the loan was paid; that T. N. Jordan died in 1924; that Mrs. E. M. Holt was also dead; and that the other heirs of Mrs. E. M. Holt conveyed the land in controversy to the defendant, Mrs. Nellie B. Jordan, Mrs. Holt’s daughter, on January 24, 1925, which deed of conveyance was recorded.
The bill sought to have the deed, absolute in form, declared a mortgage and also sought to have the deed canceled. The answer put in issue the material parts of the allegations of the bill, especially that the deed, absolute in form, was intended to be a mortgage, and that the mortgage had been paid.
The deed from T. E. Jordan to Mrs. E. M. Holt made an exhibit to the pleadings, recited the consideration of one dollar and other good and valuable consideration, and was, in form, a statutory warranty deed.
It is unnecessary to set out a detailed statement of the facts. We will advert to such facts as we deem necessary to mention in the decision of the points involved.
The court below decreed that the deed was a mortgage; and decreed that there was five thousand dollars due thereon; and ordered that the complainants in the original bill be allowed ten days in which to tender five thousand dollars and interest into court; that thereupon the deed of Jordan to Mrs. Holt would be canceled and the prayer of the bill, in effect, granted. The money was paid into court, and an order was entered reciting that the decree of the court had been complied with; and the court thereupon entered an order making the former decree final.
The appellant, Mrs. Nellie B. Jordan, assigns two main grounds for reversal in this case: (1) That the complain
ants having failed to show that the grantor, T. M. Jordan, remained in possession of the lands in controversy, and having failed to prove any frand, their hill conld not therefore he maintained; and (2) that the proof was insufficient to establish the deed, absolute in form, to be a mortgage.
Section 3127, Hemingway’s Code (section 4783, Code 1906) is as follows:
“A conveyance or other writing absolute on its face, where the maker parts with the possession of the property conveyed by it,- shall not be proved, at the instance of any of the parties, by parol evidence, to be a mortgage only, unless fraud in its procurement be the issue to be tried. ’ ’
There was no specific allegation as to possession after the execution of the deed by T. M. Jordan to Mrs. E. M. Holt, and there was no allegation of fraud charged in 'the bill. There was no proof offered tending to show any kind of fraud on the part of Mrs. Nellie Jordan. As we view the record, there was no proof of possession on the part of T. N. Jordan or a claim of ownership established in this record, during the period prior to his death and subsequent to the acknowledgment of the deed in controversy. The land had not been occupied by any one for a long time prior to the execution of the deed. The evidence showed that, long before this controversy arose, there was a house and a few acres of land in cultivation.
The only evidence offered by the complainants was that T. N. Jordan on one occasion offered to sell some timber from the land, a year or two prior to his death; that he asked Narcisse, an Indian, to prevent depredations on the timber. Jordan did not live on the land. Prior to 1918 he had lived in town, some distance from the land but in 1918 he removed from that county and never returned there to live. The record shows, further, that the taxes continued to be assessed by the taxing authorities in the name of T. N. Jordan. There is a statement m the record that the taxes were paid at times for Mrs.
E. M. Holt, and, on one occasion, for T. N. Jordan. Subsequent to tbe date of tbe acknowledgment of tbe deed here in controversy, in 1916, Mrs. B. M. Holt was presumed to be in possession of tbe land by virtue of the warranty deed which tbe grantor, Jordan, bad executed to her. And where tbe land is unoccupied, as in this case, that presumption must be overcome.
Bairly considered, we do not believe tbe chancellor was warranted in finding, if be did so find, that tbe presumption of possession in tbe grantee of tbe deed was overcome by tbe weak testimony, which we unhesitatingly say does not show any. character of possession, and certainly not sufficient to overcome tbe presumption that attaches to possession under tbe deed. We think tbe burden of proof is on tbe one who seeks to introduce parol proof, under tbe statute above quoted, to show that tbe grantor remained in possession. This, of necessity, is true, because all of tbe heart of complainants ’' case was based upon tbe parol proof which they sought to offer in this case. Their case was “bedrocked” on an oral agreement which they must prove before the defendant is called upon to answer. In our opinion, the complainants wholly failed to prove any such occupancy of the land here in controversy as was necessary to prove possession or continued possession.
Before the deed was executed in favor of Mrs. Holt, Jordan was selling and removing timber from the premises; the land was being cultivated; there was a house thereon, and a tenant living therein. After the execution of the deed, the place was no longer occupied by a tenant; there was no longer a foot of the land cultivated. There was no single hostile act save the request made of Nar-cisse by Jordan that he prevent depredations on the timber. And it will be remembered that Mrs. Holt was the mother-in-law of T. N'. Jordan and was evidently backing him in a financial way.
In 22 C. J. 125, is stated the rule which we announce in this case as applying where the effort is to show that the
deed, though absolute in form, is construed to be a mortgage in fact. The complainants in this case were seeking to establish by oral proof that which was presumed against them until the presumption was overcome by the weight of proof. In other words, Mrs.
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McGowen, J.,
delivered the opinion of the court.
Appellees, J. C. Jordan and other children of T. N. Jordan, filed their bill in the chancery court of Harrison county against Mrs. Nellie B. Jordan, the widow of T. N. Jordan. The bill alleged that they, as the children, and Mrs. Nellie B. Jordan, appellant, as the widow, own as tenants in common certain land situated in that county; that T. N. Jordan died intestate, and that they, together with the defendant, each own a one-eleventh interest in said land. The bill further charged that, in his lifetime, T. N. Jordan, on the 7th day of April, 1913, executed a deed in favor of Mrs. E. M. Holt, the mother of the defendant, Mrs. Nellie B. Jordan, and that on the 10th day of February, 1916, said deed was acknowledged; that said deed
was executed in consideration of a sum of money loaned to Mm by Mrs. Holt; that tlio deed was executed on the agreement that the deed was to be in effect and operate as a mortgage on said real estate; that it was to be canceled upon the payment of the money. The deed was made an exhibit and was recorded on February 11, 1916. The bill further charged that the loan was paid; that T. N. Jordan died in 1924; that Mrs. E. M. Holt was also dead; and that the other heirs of Mrs. E. M. Holt conveyed the land in controversy to the defendant, Mrs. Nellie B. Jordan, Mrs. Holt’s daughter, on January 24, 1925, which deed of conveyance was recorded.
The bill sought to have the deed, absolute in form, declared a mortgage and also sought to have the deed canceled. The answer put in issue the material parts of the allegations of the bill, especially that the deed, absolute in form, was intended to be a mortgage, and that the mortgage had been paid.
The deed from T. E. Jordan to Mrs. E. M. Holt made an exhibit to the pleadings, recited the consideration of one dollar and other good and valuable consideration, and was, in form, a statutory warranty deed.
It is unnecessary to set out a detailed statement of the facts. We will advert to such facts as we deem necessary to mention in the decision of the points involved.
The court below decreed that the deed was a mortgage; and decreed that there was five thousand dollars due thereon; and ordered that the complainants in the original bill be allowed ten days in which to tender five thousand dollars and interest into court; that thereupon the deed of Jordan to Mrs. Holt would be canceled and the prayer of the bill, in effect, granted. The money was paid into court, and an order was entered reciting that the decree of the court had been complied with; and the court thereupon entered an order making the former decree final.
The appellant, Mrs. Nellie B. Jordan, assigns two main grounds for reversal in this case: (1) That the complain
ants having failed to show that the grantor, T. M. Jordan, remained in possession of the lands in controversy, and having failed to prove any frand, their hill conld not therefore he maintained; and (2) that the proof was insufficient to establish the deed, absolute in form, to be a mortgage.
Section 3127, Hemingway’s Code (section 4783, Code 1906) is as follows:
“A conveyance or other writing absolute on its face, where the maker parts with the possession of the property conveyed by it,- shall not be proved, at the instance of any of the parties, by parol evidence, to be a mortgage only, unless fraud in its procurement be the issue to be tried. ’ ’
There was no specific allegation as to possession after the execution of the deed by T. M. Jordan to Mrs. E. M. Holt, and there was no allegation of fraud charged in 'the bill. There was no proof offered tending to show any kind of fraud on the part of Mrs. Nellie Jordan. As we view the record, there was no proof of possession on the part of T. N. Jordan or a claim of ownership established in this record, during the period prior to his death and subsequent to the acknowledgment of the deed in controversy. The land had not been occupied by any one for a long time prior to the execution of the deed. The evidence showed that, long before this controversy arose, there was a house and a few acres of land in cultivation.
The only evidence offered by the complainants was that T. N. Jordan on one occasion offered to sell some timber from the land, a year or two prior to his death; that he asked Narcisse, an Indian, to prevent depredations on the timber. Jordan did not live on the land. Prior to 1918 he had lived in town, some distance from the land but in 1918 he removed from that county and never returned there to live. The record shows, further, that the taxes continued to be assessed by the taxing authorities in the name of T. N. Jordan. There is a statement m the record that the taxes were paid at times for Mrs.
E. M. Holt, and, on one occasion, for T. N. Jordan. Subsequent to tbe date of tbe acknowledgment of tbe deed here in controversy, in 1916, Mrs. B. M. Holt was presumed to be in possession of tbe land by virtue of the warranty deed which tbe grantor, Jordan, bad executed to her. And where tbe land is unoccupied, as in this case, that presumption must be overcome.
Bairly considered, we do not believe tbe chancellor was warranted in finding, if be did so find, that tbe presumption of possession in tbe grantee of tbe deed was overcome by tbe weak testimony, which we unhesitatingly say does not show any. character of possession, and certainly not sufficient to overcome tbe presumption that attaches to possession under tbe deed. We think tbe burden of proof is on tbe one who seeks to introduce parol proof, under tbe statute above quoted, to show that tbe grantor remained in possession. This, of necessity, is true, because all of tbe heart of complainants ’' case was based upon tbe parol proof which they sought to offer in this case. Their case was “bedrocked” on an oral agreement which they must prove before the defendant is called upon to answer. In our opinion, the complainants wholly failed to prove any such occupancy of the land here in controversy as was necessary to prove possession or continued possession.
Before the deed was executed in favor of Mrs. Holt, Jordan was selling and removing timber from the premises; the land was being cultivated; there was a house thereon, and a tenant living therein. After the execution of the deed, the place was no longer occupied by a tenant; there was no longer a foot of the land cultivated. There was no single hostile act save the request made of Nar-cisse by Jordan that he prevent depredations on the timber. And it will be remembered that Mrs. Holt was the mother-in-law of T. N'. Jordan and was evidently backing him in a financial way.
In 22 C. J. 125, is stated the rule which we announce in this case as applying where the effort is to show that the
deed, though absolute in form, is construed to be a mortgage in fact. The complainants in this case were seeking to establish by oral proof that which was presumed against them until the presumption was overcome by the weight of proof. In other words, Mrs. Holt was presumed, by virtue of her deed from Jordan, to be the absolute owner of the land and in possession thereof, until that presumption which stood as evidence for her was overturned, either by other presumptions or by competent proof.
"We think the chancellor was manifestly wrong in holding that the slight circumstances, the main feature of which we have mentioned above, overturned the presumption in the deed; and for that reason all the proof offered, tending to show that the deed was a mortgage, had not been rendered competent by showing that complainants’ intestate had remained in possession of the property.
Where one desires to offer parol proof that a deed absolute in form is a mortgage in fact, it must first be shown that the grantor remained in possession of the land.
We think, after a careful review of the evidence offered oii behalf of both parties, that complainants wholly failed to prove by a preponderance of the evidence that this deed was intended to be a mortgage, and that the parties had a right to deal with it as a mortgage. If Jordan had become wealthy and the lands of little value, could Mrs. Holt have had this deed foreclosed and then held Jordan for a balance1? We think not.
Although one witness testified that the defendant, Mrs. Jordan, had said to her that there was a debt of one thousand two hundred dollars which had been paid, there was no effort to prove any of the attending circumstances surrounding the execution of this deed. As, for instance, how long the deed was to be treated as a mortgage; when it began to operate as a mortgage; when interest began to run; when, if ever, that situation was to change.
Another witness testified on behalf of the defendant, objected to by the complainants, that on one occasion
the grandmother said to a niece, Miss Gilmer, in discussing’ a sale of this place known as the Hockaday place, that she must get as much as five thousand dollars, the amount she had advanced to the deceased, Jordan, which had never been paid. And, in another place, the five thousand dollars she mentioned as the amount her grandmother must receive for the place was the amount borrowed. In another place, the same witness said she was not sure the amount was five thousand dollars. The most that can be said of this testimony is that it perhaps establishes that, at one time, there was a debt owing by Jordan to Mrs. Holt, the amount of which varied between one thousand two hundred dollars and five thousand dollars. The complainants very astutely offered on the argument in the lower court to pay the larger sum and paid it into court; and the court adopted that amount as being the amount of the mortgage which he found existed.
Without a glimpse of the conduct of the parties to this alleged oral contract, their treatment of each other, without a syllable of the conversation constituting the negotiation, without a written line between the parties, we unhesitatingly declare that this deed must be treated as that which it purported to be until there is proof sufficient to establish a contract between Jordan and Mrs. Holt; that, although the deed was absolute in form, it was to be treated by them as a mortgage to be paid by Jordan; that no such contract is- here shown by positive proof or circumstances tending to prove that proposition. The evidence in this case is indeed hazy, resting upon admissions against interest made long prior to the delivery of the testimony, and, in one case, by a witness whose whole testimony is tainted with prejudice, as indicated by the chancellor in deciding the case.
When it is sought to destroy the sanctity of an instrument, such as a deed, by parol proof, and change its form from the absolute to the conditional, the proof necessary to alter or change the written instrument must be clear, unequivocal, and convincing. See Pomeroy on
Equity Jurisprudence, section 1196 and note, column 2, page 2846, and authorities there cited. Some courts have held that this evidence must exclude a reasonable doubt, but we are satisfied to. announce the rule in line with the weight of authority that the evidence must be clear, unequivocal, and convincing.
We do not think in this case that any contract at all was shown, whereby this deed was to be treated as a mortgage; but, certainly, the testimony of Miss Gilmer, upon which the chancellor based his decree, does not squint at any such contract; neither does the testimony of Dare, or Miss Harris. On both propositions, we think the finding of the chancellor of facts in this case was manifestly wrong and that the complainants are not entitled to maintain their bill.
jReversed mid decree here for appellant.