Opinion
6 Div. 424.
May 19, 1921.
Appeal from Circuit Court, Fayette County; T. L. Sowell, Judge.
Ray Cooner, of Jasper, for appellant.
A tender was not necessary as complainant was in possession. 128 Ala. 380, 29 So. 547; 100 Ala. 612, 13 So. 679; 84 Ala. 302, 4 So. 270; 120 Ala. 46, 23 So. 674. The case made called for the relief prayed and the court erred in its decree denying relief. 162 Ala. 496, 50 So. 127; 155 Ala. 516, 46 So. 760; 155 Ala. 546, 46 So. 851; 157 Ala. 91, 47 So. 226; 157 Ala. 227, 47 So. 724; 149 Ala. 174, 43 So. 360; 143 Ala. 665, 42 So. 94; 86 Ala. 333, 5 So. 465; 151 Ala. 171, 44 So. 97; 72 Ala. 366.
W. S. McNeil, of Fayette, for appellee.
The evidence, under all the authorities, failed to make out complainant's case, and the court properly so decreed. 98 Ala. 511, 13 So. 548; 93 Ala. 262, 9 So. 177; 86 Ala. 333, 5 So. 465; 84 Ala. 219, 4 So. 153; 83 Ala. 396, 3 So. 698; 80 Ala. 61; 80 Ala. 16; 60 Ala. 217.
The complainant (appellant) sought to have an instrument, in form a regular deed, executed by complainant to respondent (appellee), declared a mortgage. The court denied the relief. To entitle a complainant to such relief, the evidence conducing to a conclusion favorable thereto must be clear, unequivocal, and convincing. Rodgers v. Burt, 157 Ala. 91, 93, 47 So. 226, among others. See elaborate annotations in L.R.A. 1916B, 193-196. In this cause the evidence is in inexplicable conflict between the parties. The requisite certainty of conviction that the parties intended, contemporaneously, the creation of a security for a debt rather than a sale outright, is not afforded by the evidence. The complainant did not meet the measure of proof required of him. The decree denying relief was hence well rendered.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.