Wall v. Drasheff

31 So. 2d 598, 249 Ala. 441, 1947 Ala. LEXIS 392

• Court: Supreme Court of Alabama
• Decided: July 31, 1947
• Docket: 6 Div. 574.
• Status: Published

Opinion

SIMPSON," Justice.

Appeal from interlocutory order sustaining demurrer to amended bill seeking to declare a deed a mortgage.

[1J To convert a conveyance absolute in its terms into a mortgage, the intention and understanding of all parties to that effect must concur. The fact that the grantor intended the conveyance as a mortgage is not sufficient. The grantee must also have so intended and considered it and accepted the instrument as such. Martin v. Martin, 123 Ala. 191, 26 So. 525; West v. Hendrix, 28 Ala. 226; Sewell v. Price’s Adm’r, 32 Ala. 97; Mitchell v. Wellman, 80 Ala. 16; Mobile Building & Loan Ass’n v. Robertson, 65 Ala. 382; Douglass v. Moody, 80 Ala. 61.

To invoke the aid of equity to this end “there must be specific allegation that security for the debt was understood and intended by both parties to the transaction.” Hogan v. Moore, 221 Ala. 355, 358, 128 So. 790, 792; Smith v. Smith, 153 Ala. 504, 45 So. 168.

The bill as amended was notably deficient in these allegational requisites and the trial court must be affirmed in sustaining the demurrer thereto.

Affirmed.

GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.