To Show Consideration. Where a chattel mortgage is executed as collateral security for a balance due on a prior mortgage, the prior mortgage is competent evidence to show the consideration for the subsequent mortgage. Winston v. Farrow (Ala.), 40 So. 53.

The admission of the mortgagor, made to a third person having in his hands for collection a claim against him, that the claim was correct, is not sufficient to prove the consideration of the mortgage given to secure the debt, and is not entitled to any more weight than a similar recital in the mortgage. Snellgrove v. Evans, 145 Ala. 600, 40 So. 567. § 25.

Parol Evidence.

To Show Absolute Conveyance to Be Mortgage.—Parol proof is admissible to show, that a conveyance, absolute on its face, was intended by the parties, to operate as a mortgage or security. Hudson v. Isbell, 5 Stew. & P. 67; English v.

Lane, 1 Port. 328; Eiland v. Radford, 7 Ala. 724, 726; McKinstry v. Conly, 12 Ala. 678, 681; Bishop v. Bishop, 13 Ala. 475; Chapman v. Hughes, 14 Ala. 218, 220; Parish v. Gates, 29 Ala. 254.

Notwithstanding the general rule, that a written contract can not be contradicted, varied, or explained by parol; yet a deed, absolute on its face, may be shown by parol, to have been intended to operate as a mortgage, especially in cases of fraud: provided the parol proof be strong and satisfactory. English v. Lane, 1 Port.

328.

Where the purchaser of a mule, having executed and delivered his note for the price, and having received the mule, "immediately after. the execution of his note, and as he was about to leave with the mule, verbally agreed," with the seller that the latter "should have a mortgage on the mule to secure payment of the note;" held, that this agreement, being outside of the contract shown by the note, might be proved by parol, and was also valid as a subsequent modification of that contract. Glover v. McGilvray, 63 Ala.

508.

"One expression in Locke v. Palmer, 26 Ala. 312, seems to be in conflict with English v. Lane, 1 Port. 328, and Turnipseed |

desire to be understood as reaffirming that principle of the opinion. It reads as follows: 'Upon a careful examination of the whole evidence, we have great doubt whether the parties contemplated an absolute sale. The inclination of our mind is rather that security only was intended; and such being the fair result of the evidence, we are bound by the principles which govern courts of equity in this class of cases, to declare the contract a mortgage, instead of an absolute sale.' We suppose this is a clerical error; and that where the word 'absolute' precedes 'sale,' the word 'conditional' should be substituted. Thus corrected, the opinion is free from objection, and harmonizes with our former adjudications." Parish v. Gates, 29 Ala. 254, 261.

But in the following case it was held that parol evidence is not admissible at law to show that a deed of personal property, absolute on its face, was intended to operate only as a mortgage. Bragg v. Massie, 38 Ala. 89; Bates v. Crowell, 122

Ala. 611, 25 So. 217. But such evidence would be admissible for a creditor assailing the deed for fraud. Hartshorn v. Williams, 31 Ala. 149.

Where, by a written contract, A bound himself, on payment of a certain sum, to "resell" to B certain slaves which B had conveyed to him by bill of sale, an allegation, in a bill in equity by B, that, by the term "resell," the parties meant "reconvey," is not sufficient to authorize the introduction of parol proof, contradicting the written instrument; and such contract can not be contradicted by parol evidence, unless the contract was obtained by fraud, or entered into by mistake or surprise. McKinstry v. Conly, 12 Ala. 678. See ante, "Absolute Bill of Sale as Mortgage," § 21.

lute bill of sale to be a security in the nature of a mortgage, the proof must be clear and convincing. Freeman v. Baldwin, 13 Ala. 246. See, also, Chapman v. Hughes, 14 Ala. 218, 221.

Where it is doubtful whether a transaction as to personal property was a mortgage or absolute sale, the fact that the price paid was greatly below the value of the property is entitled to weight. Todd v. Hardie, 5 Ala. 698.

Where the vendee retains the right to demand repayment of the vendor notwithstanding the purchase, and although the property should be lost, it is conclusive to show that the transaction was intended as a security, and not a conditional sale. Robinson v. Farrelly, 16

Ala. 472.

Where it was charged that a bill of sale absolute on its face was in fact a mortgage, and it appeared that the property was worth double the consideration given for it, the fact that the slaves were delivered to the vendee is not entitled to any weight. Hudson v. Isbell, 5 Stew. & P. 67.

Where the evidences of debt are delivered up to the debtor upon a contract importing on its face a sale of personal property, and the debt admitted to be satisfied, nothing short of the clearest and most convincing proof that a remedy existed for its recovery would suffice to convert such a contract into a mortgage. McKinstry v. Conly, 12 Ala. 678.

To authorize a court of equity to decree that a bill of sale for a slave, absolute on its face, was intended as a mortgage or conditional sale, the proof must be clear, consistent, and convincing. The testimony of two witnesses, one of whom was the mother of the complainant, as to subsequent admissions by the defendant, is not sufficient to overcome the positive denial of the answer and the presumption arising from the bill of sale itself. Harris v. Miller, 30 Ala. 221.

the ground that there was a parol agreement to redeem, or for a repurchase, the subscribing witness to the bill of sale was not produced, nor his absence accounted for, and there was no positive testimony rebutting the denial of the parol agreement by the answer, and the court refused to disturb the sale, after a lapse of twenty years, and no excuse shown for the delay. Hatfield v. Montgomery, 2 Port. 58.

Where a party seeks relief in equity on the face of a written instrument asking that an absolute sale may be held a trust or mortgage, he must establish his case by clear and convincing proof. It is not enough to merely raise a doubt whether the writing expresses the true contract of the parties, nor is proof by several witnesses of defendant's subsequent declarations, which are not charged in the bill, sufficient to outweigh the positive denial of his answer under oath, the writing itself, and the testimony of the subscribing witness. Brantley v. West, 27 Ala. 542.

A debtor under arrest was dissuaded from selling part of his slaves to satisfy the debts. His acquaintances endeavored to negotiate a loan on the slaves to be repaid out of their services, and finally agreed to make such a loan himself. Possession of the slaves was delivered, and an absolute bill of sale to all of them was executed, which the lender insisted was necessary for his security. loaned was $3,000, and the slaves were worth $9,000. The answer denied the right to redeem, but a witness testified that after the execution of the bill of sale the lender had admitted the vendors' right to redeem. Held, to show that the bill of sale was intended for security only. English v. Lane, 1 Port. 328.

The money

On a bill to redeem a slave conveyed by a bill of sale absolute on its face, on

parol. Shriner v. Meyer, 55 So. 156, 171 Ala. 112. See ante, "Absolute Bill of Sale as Mortgage," § 21.

apply to an equitable mortgage on land or personal property. Putnam v. Summerlin, 168 Ala. 390, 53 So. 101.

Retroactive Effect of Statutes.-A verbal agreement by one of several chattel mortgagors that the mortgage shall include other debts is good, as to him, as a verbal mortgage of his property, the agreement having been made before Code 1886, § 1731, prohibiting verbal mortgages, was in force. Hill v. Nelms, 86 Ala. 442, So. 796, cited in note in 7 L. R. A., N. S., 420.

§ 29. Form of Instrument. § 30.

In General.

No Particular Form Necessary.--No particular form of words is necessary for a chattel mortgage. Glover v. McGilvray, 63 Ala. 508.

"It is true that no technical words are necessary to constitute a mortgage which would be good at law, any more than in equity. Any words would be sufficient which serve to show a transfer of the mortgaged property as security for a debt. 'Whatever language may be used, if it shows that the parties intended a sale of the chattels as security, the instrument will be construed to be a [legal] mortgage.' Jones' Chat. Mort., §§ 1, 8, 9. This we take to be the decisive test, and nothing less will answer the purpose." Jackson, etc., Co. v. Rutherford, 73 Ala. 155, 157.

"What precise words are required to constitute a mortgage can not be absolutely affirmed. There must be a debt, legal liability, or obligation, actually existing, or, at the time, proposed to be incurred, and afterwards actually incurred, or there can be no valid mortgage. But, when there is such debt, legal liability, or obligation, then any agreement or language, by which property is sufficiently identified, and designated as a security for its payment, will amount to a mortgage. Security is the aim, the essence of a mortgage; and when property is sufficiently described, set apart, and charged by contract with the burden of a debt, this contains all the essential elements of a valid mortgage. See 1 Hilliard on Mortgages, 2, 4; Jewett v. Warren, 12 Mass. 300, 7 Dec. 74; Homes v. Crane, 2 Pick. 607. Any conveyance, 'intended by the parties,

at the time of making it, to be a security for the payment of money, or the doing of some prescribed act, is a mortgage.' 2 Wash. Real Prop. 43-47." Stearns v. Gafford, 56 Ala. 544, 546.

If the parties to an instrument, at the time if its execution, intend it as a security, whatever may be its form, equity will consider it a mortgage; and no terms or words used in it will be allowed to change its character and cut off the right of redemption. Robinson v. Farrelly, 16 Ala. 472. See ante, "Sale," § 5.

A valid mortgage of personal property may be created by a writing which uses the word "mortgage" only, without any other words of conveyance; nor is it necessary that it should contain a power of sale, or authorize the mortgagee to take possession on default being made in the payment of the secured debt. Mervine v. White, 50 Ala. 388.

An instrument of writing, very inartificially drawn, which shows on its face that the relation of debtor and creditor existed between the parties, and by which it is declared that the creditor "shall have a lien" on a horse, the property of the debtor, "to have and to hold" until the debt is paid, operates as a mortgage, although it contains no words of conveyance. Ellington v. Charleston, 51 Ala. 166. See post, "Animals," § 35.

An instrument by which a stockholder in a corporation "transfers and assigns his interest" therein as security for a debt, and authorizes the transferee and his assigns "to sell and transfer said interest so as to satisfy and discharge said debt at maturity," is a mortgage passing the legal title, as between the parties, without any transfer of the certificates stock, or of the stock itself, on the books of the corporation; and the power to sell is not limited to a sale for the full amount of the debt. Campbell v. Woodstock Iron Co., 83 Ala. 351, 3 So. 369.

of

An instrument of writing, which, by apt words, conveys the grantor's growing crop and other personal property, to secure the payment of a promissory note given for advances supplied to him; conditioned to be void if the note is paid at maturity, and containing a power of sale in the event of a default-—is a mortgage, although the note may also contain all the