Ordway v. White

80 Ala. 244

• Court: Supreme Court of Alabama
• Decided: December 15, 1885
• Status: Published

Opinion

STONE, C. J.

The conveyance in this case is, in form, a mortgage, securing one creditor, and, for that purpose, conveys a tract of land. The bill is filed by other creditors, and seeks to have the mortgagé declared a general assignment. In such issue, the burden of proof is on the complainants. The principal testimony relied on by complainants is that of the mortgagor, Ward. His testimony is, that in addition to the lands conveyed by the mortgage, he owned no real estate other than his homestead. His exact language in reference to his personal property, as found in his deposition, is as follows: “ At the time I gave the said mortgage to White, Handley & Co., all of my personal property was not worth one thousand dollars in cash.” There is no testimony in the transcript that tends in the slightest degree to show a larger amount of personal property owned by Ward, or that his testimony is in.any respect untrue. We think the complainants made sufficient proof to establish the averments of their bill, and that at the time the mortgage was executed, it conveyed substantially all the property the mortgagor owned liable to the satisfaction of his debts. Shirley v. Teal, 67 Ala. 449; Du Bose v. Carlisle, 51 Ala. 590; Danner v. Brewer, 69 Ala. 191.

The decree of the chancellor is reversed, and here rendered, granting to complainants the relief prayed. The cause will be remanded that the chancellor may make the proper orders for carrying the decree into effect.

Reversed, rendered in part, and remanded.