Opinion
7 Div. 139.
June 9, 1932.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
Young Longshore, of Anniston, for appellant.
No trust concerning lands, except such as result by implication or construction of law, or which may be transferred or extinguished by operation of law, can be created, unless by instrument in writing, signed by the party creating or declaring the same, or his agent or attorney lawfully authorized thereto in writing. Code 1923, § 6917; Willard v. Sturkie, 213 Ala. 609, 105 So. 800; Chesser v. Motes, 180 Ala. 563, 61 So. 267; Moore v. Campbell, 102 Ala. 445, 14 So. 780; Tillman v. Kifer, 166 Ala. 403, 52 So. 309.
Knox, Acker, Sterne Liles, of Anniston, for appellee.
Complainant, upon releasing the tract sold to Latham from the Hallmark mortgage, was subrogated to Hallmark's rights under the Latham mortgage. 25 R.C.L. 1313; 37 Cyc. 370; Knighton v. Curry, 62 Ala. 404; Dothan Grocery Co. v. Dowling, 204 Ala. 224, 85 So. 498; Searcy v. Shows, 204 Ala. 218, 85 So. 444. If the notes and mortgages were considered as real property, nevertheless the equitable title would vest in complainant, who furnished the sole consideration. No writing is necessary. Long v. Mechem, 142 Ala. 405, 38 So. 262; Lehman v. Lewis, 62 Ala. 129. But the subject-matter of the transaction is personalty, and may be assigned without formality. Code 1923, § 9010; Martinez v. Lindsey, 91 Ala. 334, 8 So. 787; Wildsmith v. Tracy, 80 Ala. 258; Ward v. Ward, 108 Ala. 278, 19 So. 354; 1 Pomeroy's Eq. Jur. (3d Ed.) 620.
It is well settled by the decisions of this court, which are in accord with the weight of authority, that an oral express trust in personalty may be created; that such trust does not offend the statutes of fraud, and may be established and enforced in equity. Moore, Adm'r, v. Campbell, Ex'r, 113 Ala. 587, 21 So. 353; Id., 102 Ala. 445, 14 So. 780; Bishop's Heirs v. Administrator Heirs of Bishop, 13 Ala. 475; Barrell v. Hanrick, Adm'r, et al., 42 Ala. 60; Hill v. Hill et al., 216 Ala. 435, 113 So. 306; 26 R. C. L. 1194, § 30; Barnes v. Barnes, 282 Ill. 593, 118 N.E. 1004, 4 A.L.R. 4; Straw v. Mower, 99 Vt. 56, 130 A. 687.
Money secured by mortgage on real property is within this rule. 3 Pom. Eq. Juris., 2232, § 1008; Tapia v. Demartini, 77 Cal. 383, 19 P. 641, 11 Am. St. Rep. 288; 26 R. C. L. 1194, § 30.
The averments of the bill as last amended bring this case within this principle. The demurrer to the bill as last amended was, therefore, overruled without error.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.