Opinion
6 Div. 574.
July 31, 1947.
Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.
Jackson, Rives Pettus, of Birmingham, for appellant.
In action to have a deed absolute on its face declared a mortgage, the court may ascertain from extrinsic evidence what was in fact the real contract between the parties. McNeill v. Norsworthy, 39 Ala. 156; Morton v. Allen, 180 Ala. 279, 60 So. 866, L.R.A. 1916B, 11; Kelly v. Tatum, 224 Ala. 57, 139 So. 246.
Kingman C. Shelburne, of Birmingham, for appellee.
In order to authorize the court to treat a deed absolute on its face as a mortgage, it must appear not only that the grantor intended and considered it as a mortgage, but that the grantee intended and accepted it as a mortgage. Martin v. Martin, 123 Ala. 191, 194, 26 So. 525; Sewell v. Price, 32 Ala. 97; Mitchell v. Wellman, 80 Ala. 16, 20; Smith v. Smith, 153 Ala. 504, 511, 45 So. 168.
Appeal from interlocutory order sustaining demurrer to amended bill seeking to declare a deed a mortgage.
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.