Johnson v. Hattaway

1. Equity; Decree Pro Oonfesso; Admissions by. — Unless the equitable relief sought be authorized by the allegations of the bill the taking of a decree pro confesso is not an admission that the complainant is entitled to equitable relief, nor is it a consent that the relief prayed for may be granted, although it is an admission of the facts alleged in the bill. 2. Mortgages; Deed as Mortgages; Evidence. — Parol evidence is admissible to show that a deed absolute on its face was intended to operate as a mortgage. 3. Same. — A lease for a term of years, absolute on its face conveying all the timber on a tract of land for a sum stated paid on the delivery of the instrument of lease may be shown to be a mortgage to secure repayment of the amount paid by the lessee.

Bill to Deolwre an Absolute Deed A Mortgage. Appeal from Coffee Chancery Court. Heard before Hon. W. L. Parks. Bill by R. J. Hattaway against N. B. Johnson. Prom a decree for complainant, defendant appeals. The following is a copy of the lease agreement referred to in the opinion: “State of Alabama, Pike County. This agreement, made on the 2d day of September 1908, between R. J. Hataway and Exa Hataway, parties of the first part, and N. B. Johnson, party of the second part, witnesseth: That for and in consideration of certain agreements herein contained to be performed by the said N. B. Johnson, the said parties of the first part, R. J. and Exa Hataway, grant unto the said N. B. Johnson the right .to enter upon certain lands hereinafter described, to use all timber on said lands available for turpentine, sawmill, and other purposes. It is further agreed that the said N. B. Johnson shall have all right and to do such acts as may be necessary for the convenient management of said business as such business is usually conducted. Said Hataways hereby declare that they are the lawful owners of said land and trees and that there is no lien or incumbrance on same; that they are located in the county of Coffee, state of Alabama, and described as follows: The E. % of S. W. 14 of S. E. 14, section 10, township 7, range 19, E. % of S. E. % and S. % of N. W. 14 of S. E. 3,4, section 10, township 7, range 19, and W. y2 of S. W. 14, section 11, township 7, range 19, located in Coffee county. This lease is to continue for a term of ten years beginning from the date of boxing the trees. The said N. B. Johnson agrees to pay for said lease as follows ; one hundred and fifty dollars on delivery of this conveyance, the receipt whereof is hereby acknowledged by the said B. J. and Exa Hataway. And it is further covenanted and agreed that the party of the second part may have the right at any time to assign the lease in whole or in part, and that any assignee of this lease shall have the same right of assignment, and that all the rights and privileges of the party of the second part shall vest in whomsoever may succeed to the interests hereby conveyed to the said party of the second part; and the said party of the first part, for their heirs, executors, and administrators, the said granted and leased timber the right to box, work, and otherwise use the same for turpentine purposes, unto the party of the second part, their heirs and assigns, will forever warrant and defend.” Appellant is entitled to appeal from the final decree although a decree pro confesso is taken against him. — Johnson v. Kelly, 80 Ala. 135; McDonald v. Mobile Life Ins. Go., 56 Ala. 468. Under the allegations of the bill the instrument called the lease was not a mortgage and should not have been declared so by the Chancery court. — West v. Hendrix, 28 Ala. 226; Knows v. Dreher, 84 Ala. 319; Haynie v. Robertson, 58 Ala. 37; Swift v. Swift, 36 Ala. 147; Adonis v. Pilcher, 92 Ala. 474; Micou v. Ashhurst, 55 Ala. 607; Downvng v. Woodstock Iron Co., 93 Ala. 268; Pearson v. Dancer, 144 Ala, 430; Peagler v. Stabler, 91 Ala. 310; Pearson v. Seay, 38 Ala. 643; Pearson v. Seay, 35 Ala. 612; 27 Cyc. 1003, b; 1006, 1025; Conway v. Alexander, notes, U. S. 3 L. Ed. 321; Hornthrorp v. Neale, 26 Am. Dec. 594. It not being admitted or conceded that the lease was not what it appears on its face, vesting title to the trees in respondent to the bill, and the question not being as to whether it is a conditional sale or a mortgage, the parol agreement establishing the mortgage must be precise, definite and certain. — Reeves v. Abercrombie, 108 Ala. 535; Rose v. Gandy, 136 Ala. 329; 27 Cyc., pages 1005, 1006, 1025. 1 Jones Mortgages (6th Ed.) § 286 and Ala. cases cited there. There being several decrees in the record and it not being shown from which decree this appeal was taken, the court can with propriety decline to review either.- — ■ Kelly v. Degan, 111 Ala. 156; Alexander v. Bates, 127 Ala. 328. The decree of Feb. 9, 1907 and Aug. 9, 1907, cannot be united in one appeal. — Authorities supra; 105 Ala. 834; 132 Ala. 132. The personal judgment against the appellant was proper.- — Sec. 856, Code 1896; Pressley v. McLean, 80 Ala. 309; Hastings v. Ala. St. L. Co., 124 Ala. The allegations of the bill show that the instrument intended to be declared a mortgage was a mortgage under the intention of the parties. — Forsyth v. Freer, 62 Ala. 443; Shreve v. McGowan, 49 South. 94; Smith v. Smith, 45 South. 168; Turner v. Wilkerson, 76 Ala. 361.