Opinion
6 Div. 329.
October 9, 1952.
Appeal from the Circuit Court, Cullman County, J. H. Crow, Jr., J.
Sherman B. Powell, Decatur, for appellant.
The doctrine of equitable mortgages by reservation of lien for purchase price applies to personal property. Putman v. Summerlin, 168 Ala. 390, 53 So. 101. Where there is a failure to carry out the intention of the parties to a transaction to give security for a debt on particular property, equity, in an appropriate proceeding, will declare the existence of an equitable mortgage or lien, and enforce same against the property in satisfaction of the debt. Edwards v. Scruggs, 155 Ala. 568, 46 So. 850. Whatever form a transaction may assume, if it was intended to accomplish the securing of a debt, equity regards it as a mortgage. Lewis v. Hickman, 200 Ala. 672, 77 So. 46. Equity regards that as done which ought to be done, and where the parties make valid agreement to give mortgage on specific property, equity will decree an equitable mortgage thereon and enforce the same. Edwards v. Scruggs, 155 Ala. 568, 46 So. 850; Lewis v. Hickman, 200 Ala. 672, 77 So. 46; Putman v. Summerlin, 168 Ala. 390, 53 So. 101; 59 C.J.S., Mortgages, § 15, p. 49.
Bland Bland, Cullman, for appellee.
Conclusions of fact by trial court on hearing ore tenus will not be disturbed on appeal unless palpably erroneous and against great weight of evidence. Rodgers v. Thornton, 254 Ala. 66, 46 So.2d 809; Crump v. Crump, 252 Ala. 164, 40 So.2d 94; Bonds v. Bonds, 234 Ala. 522, 175 So. 561; Crittenden v. Crittenden, 256 Ala. 219, 54 So. 489. Mortgage on personal property is not valid unless made in writing and subscribed by the mortgagor. Code 1940, Tit. 20, § 2; Palmer v. James, 210 Ala. 641, 99 So. 109.
This is a suit in equity by appellant for specific performance of an oral agreement to execute a mortgage or to declare and establish an equitable lien on personal property. The question of the sufficiency of the bill is not raised on this appeal. On a final hearing the trial court denied relief and dismissed the bill. The decree must be affirmed.
The evidence was substantial that whatever debt was owing the plaintiff by the defendant had been paid. While this was, of course, controverted by the plaintiff, the trial court concluded against her contention. So under the favorable presumption attending such a ruling on testimony heard ore tenus before the trial judge, this court will not reverse. Rodgers v. Thornton, 254 Ala. 66, 46 So.2d 809.
It is also to be pointed out that the agreement contended for by the bill was unenforceable under the statute of frauds. An oral agreement to execute a written mortgage is unenforceable in equity either by way of specific performance or as an equitable mortgage. Palmer v. James, 210 Ala. 641, 99 So. 109; Williams v. Davis, 154 Ala. 422, 45 So. 908; Code 1940, Title 20, § 2.
Affirmed.
LIVINGSTON, C. J., and FOSTER and GOODWYN, JJ., concur.