[Jordan et al. v. Garner et al.] BORDERS & CARMICHAEL and W. D. ROBERTS, for appellants. H. H. BLACKMAN, contra, cited Code of 1886, §§ 1732, 1845; Heflin v. Milton, 69 Ala. 354; 2 Leading Cases in Equity, 974-8. COLEMAN, J.-The case made by complainant's bill is, that they verbally contracted with one Mrs. Gray to purchase a certain lot of land from her, and not having the means to make the cash payment required, procured Bartow Garner to advance, as a loan to them, the cash payment, and to become surety for the deferred payment; that to secure Bartow Garner against loss, it was agreed that the deed be executed direct to Garner, who should reconvey to complainants, upon being repaid the loan or advance made by him as the cash payment. The bill then avers, the payment by complainants of the deferred payment for the land, and also the payment of the loan or advance to Garner. The prayer of the bill is that the title be invested in complainants. Garner sold the land to different parties, who are made parties defendant, and who, it is charged, purchased with a knowledge of complainants' equities. The bill has equity, and upon proof of the averments the complainants would be entitled to relief.— Bates v. Kelly, 80 Ala. 142. The answers deny all the material averments of the bill. Bartow Garner, in his answer, claims that he purchased the land for himself and on his own account; that he made the cash payment, and executed his note for the deferred payment, which he paid at maturity for himself with his own money; that Jordan voluntarily offered to sign the note for the deferred payment, which offer he did not decline, but that his name added no value to the note. He further answers, that he did verbally promise Jordan to sell him the lands, and that he held the land until Jordan satisfied him that he would not be able to pay him for the land and to dispose of it. Garner's vendee answers, and states that before concluding his purchase he spoke to Jordan, and that Jordan referred him to Garner, as the proper person with whom to contract, and set up no claim to the land. The evi [Jordan et al. v. Garner et al.] case. dence shows the lots have greatly increased in value. The answers set up a complete defense to complainants' bill. There is no difficulty in the law of the There is no question of a legal conditional sale made by the pleadings or the evidence, and this question will not be considered. It is not pretended that there was any written memorandum of any agreement between Garner and the complainants, or either of them. Before a deed of conveyance of lands, absolute in its terms, will be declared a mortgage, or security for a debt, or a resulting trust in lands will be declared upon parol evidence, it must be clear and satisfactory.—Adams v. Pilcher, 92 Ala. 474, 8 So. Rep. 757; Peagler v Stabler, 91 Ala. 308, 9 So. Rep. 157; Cosby v. Buchanan, 81 Ala. 574, 1 So. Rep. 898; Mitchell v. Wellman, 80 Ala. 16. There is no evidence in the record tending to show that Mattie Jordan, the wife of E. R. Jordan, owns any interterest in the lands, evidenced by any paper title, or by any parol or written agreement with Garner. Her claim is that she and her husband were equally interested in the parol agreement for the purchase of the land from Mrs. Gray, and that it was understood between her and her husband that she was to be equally benefitted in the cash advanced as a loan by Bartow Garner. It is not pretended that respondents had any notice of her claims. Unless her husband, E. R. Jordan, proves his case, she is not entitled to any consideration. Whether she has any enforceable right against her husband, will not be considered, as this question does not concern the respondents. The testimony of E. R. Jordan fully sustains the averments of his bill. That of his wife, mother-in-law and sister-in-law, on their direct examination, go far to sustain him; but scrutinizing their testimony elicited on cross examination, and comparing it with other testimony, it is clear, that the material facts testified to by them are mere hearsay, and derived from Jordan himself. They were not present and know of no agreement, of their own knowledge, that Garner advanced the cash payment for the land as a loan. They were not present, and do not know, farther than was told them by E. R. Jordan, of any payment made at any time by E. R. Jordan, either to Mrs. Gray, from whom the land was purchased, or to Bartow Garner. On the other hand, the evidence of peace who ment was [Hughes et al. v. McKenzie.] was Garner, that of the justice of the present when the cash paymade, and who took the acknowledgment of the deed, and of Mrs. Gray herself, the vendor, sustain the averments of the answer. In addition, the evidence of McNair, that Jordan set up no claim to the land, and referred him to Garner, as the proper person from whom to purchase, and the further fact that Jordan knew of the sale of the lands by Garner, witnessed valuable improvements erected thereon by the purchasers without objection or claim, are conclusive facts to our minds that he is not entitled to relief. There is no error in the record, and the decree of the lower court must be affirmed. 1. Hughes et al. v. McKenzie. Bill in Equity to have Deed declared a Mortgage. When deed absolute in form declared a mortgage.-On a bill, filed for that purpose, a deed, absolute on its face, will be declared a mortgage, when it is shown that the complainant purchased the lands, and upon payment of three-fifths of the purchase price received from the vendor a bond for title, that defendant, under an agreement with complainant, advanced for him to the vendor the balance of the purchase money, for which amount, with agreed interest, complainant executed his note to defendant, which note was a continuing debt, that the vendor had no negotiation with the defendant for the sale of the land, but executed the deed to him by direction of complainant, in consideration of the payment by him for complainant of the balance due upon the land, which balance was greatly less than the true value of said land. APPEAL from the Chancery Court of Crenshaw. On the 22d February, 1890, the appellee, Charles McKenzie, filed his bill in the chancery court of Crenshaw county, against Richard S. Hughes and others, the appellants; and alleged therein that about eight years before the filing of the bill, he purchased from T. J. Boswell and wife the 400 acres of land described in the bill, 101 415. 108 545 101 415 If120 501 [Hughes et al v. McKenzie.]. for the agreed price of $1,000; that he paid $600 in cash, and agreed to pay the remaining $400 at a future day, for which he executed to said T. J. Boswell his promissory note, and Boswell and wife gave complainant their bond to make to him a conveyance to said land, with the usual covenants of warranty, upon the payment of said note for the balance of the purchase money; that on the 29th September, 1884, complainant borrowed from defendant Hughes the sum of $400, and procured said Hughes to pay the same to said Boswell for him; and for the purpose and with the intention of securing the repayment of that sum so borrowed to said Hughes, complainant procured and authorized said Boswell and wife to convey said land to said Hughes; that contemporaneously, Hughes executed to complainant a defeasance, to the effect, that said conveyance to him was intended to be and was a mortgage to secure the repayment of said sum of $400 borrowed by complainant from him; that afterwards, about the 1st of January, 1-86, Hughes entered into the possession of the said lands, under his said mortgage, and now retains the possession thereof, together with about $600 rents, derived therefrom since he went into their possession. Complainant further alleges, that he has paid his indebtedness to said Hughes, but if he is mistaken, he is ready and willing and offers to pay him whatever sum the court may ascertain to be due and owing by him to said Hughes on said note and mortgage. He further alleges that on the 28th March, 1884, he and his wife mortgaged said lands to one M. W. Wimberly to secure a debt therein named; that said Wimberly sold and transferred said debt and mortgage to Thomas F. Owen, and afterwards, he sold and transferred the same to H. T. Wimberly; that complainant may be due and owing something on last named mortgage, and if so, he is willing and offers to pay whatever sum the court may ascertain to be due and owing in that behalf. The said Hughes, H, T. Wimberly and Mrs. N. F. McKenzie, wife of complainant, are made parties defendant to the bill. The prayer is, that the conveyance from T. J. Boswell, and wife to said Hughes be decreed to be a mortgage, to secure said sum of $400; that a reference be ordered to the register, to ascertain what, if any thing, is due and [Hughes et al. v. McKenzie.] owing by complainant on said mortgage to said Hughes and said Wimberly; that complainant be permitted to pay any such sums, and that, thereupon, said mortgages be cancelled and plaintiff put into possession of said lands; that said Hughes be held to account for the rents of said lands to complainants since he went into possession of the same, and for general relief. H. T. Wimberly answered the bill, claiming that there was due and owing on his mortgage about $395, and that it is a valid and superior lien to all others on said lands, as security for the payment of said indebtedness. The defendant Hughes answered denying the transaction of the Boswell conveyance to him, as stated by complainant, and states the same to have been as follows: that complainant applied to him, before said conveyance was executed to borrow the remaining sum due as purchase money, proposing to give defendant a mortgage on said lands as security, which proposition defendant refused to accept; that complainant came again to borrow the four hundred dollars for the purposes specified, and stated that if defendant would pay off the remaining note due to Boswell on the land, he would let defendant have it on his own terms; and defendant agreed, if Boswell would make to him a deed in fee to the lands, he would pay him the $400; whereupon complainant met defendant at the house of Boswell, and defendant then and there paid him the $400, and he and his wife executed the conveyance to defendant. And, afterwards, defendant verbally contracted to sell the lands to complainant for $480, provided it was paid within twelve months, and took the note for that sum from him, payable Oct. 1st, 1885; that defendant made no other contract with complainant besides this one, except that it was further agreed, that if complainant could not pay that sum, within the twelve months, he was to pay $150 rent for 1885; that complainant failed to pay either said sum or the rent, and at request of complainant, defendant agreed to allow him to retain possession for the year 1886 at $100 rent, and for the year 1887, at the agreed rent of $150; and in the latter part of 1887, complainant came and stated that he was unable to pay either rent or purchase money, whereupon defendant cancelled all the rent contracts, and agreed to cancel the note for $480, and remit the interest on a note of complainant and |