-The questions raised in these cross-appeals involve the construction of the agreement between the parties litigant, bearing date December 18th, 1876. The first point of contention is as to the nature of this instrument— whether it is a mortgage, or a conditional sale. It is very obvious that the difficulties of construction lie in its duplex character, involving, as it does, a clear attempt to make a con-ditional sale, and at the same time preserve the continued existence of the debt, and bind the property for the security of its payment. The provisions of the agreement are, therefore, somewhat repugnant in their nature, the law not permitting that to be done which seems to have been attempted. The instrument must be construed to be either a mortgage or a conditional sale — it cannot be both at one and the same time.
The rule has long been settled in. this State, that, in cases of doubt, the courts are always inclined to construe contracts to be mortgages, rather than conditional sales. The reason is, that no great in justice can be perpetrated, so long as the creditor recovers his debt with legal interest, while much oppression may often result by the inability of the debtor to promptly re-purchase the property at precisely the time specified. An error of judgment, in other words, which may convert the transaction by construction into a mortgage would not be so oppressive or injurious as a like error which might change a mortgage into a conditional sale. — Crews v. Threadgill, 35 Ala. 334; Turnipseed v. Cunningham, 16 Ala. 501.
It must be admitted, that the form of the contract under consideration favors the view that it is a conditional sale. This, however, is not a controlling fact, but is dominated by the intention of the parties — mere matters of form being made to yield to those of substance. — Eiland v. Radford, 7 Ala. 724. The designation of the instrument as “ a bill of sale,” and the declaration that the grantee is to be regarded as the “ absolute owner of the property,” with the right on the debtor’s part only to “ re-purchase,” are not conclusive of the legal nature of the contract. They must yield to the potent facts, that the relation of debtor and creditor subsisted between the parties before the alleged sale; that the disparity between the value of the property and the price agreed to be paid for it is great; and, above all, that the debt itself is not satisfied or extinguished by the fact of the alleged sale. — Turner v. Wilkinson, 72 Ala. 361; Eiland v. Radford, 7 Ala. 724. As said by this court, in Peebles v. Stolla, 57 Ala. 53, “one of the tests by which to determine whether or not a mortgage was intended, is *135the existence or not of a debt to uphold it. If there is no debt, there can be no mortgage. On the other hand, security for a debt is incompatible with the idea of a conditional sale, and when shown to exist, is conclusive that the transaction is a mortgage.
In the present case, the continued existence of the debt is preserved, — at least until what is denominated as the “re-purchase” of the property by the debtor, or until seven months after date of the agreement. It is expressly declared, that the creditor “shall not lose or forfeit any lien or right that it may have secured to have the said judgment satisfied by a sale, under venditioni exponas or execution, of said property hereby sold and transferred, or of any otherproperty,” but that the judgment, to which the debt had been reduced, “ shall be and remain valid and effective for all purposes, as a subsisting security ” to the judgment creditor. The preservation of the judgment in all its original force, with the right to levy upon and sell the property of the judgment debtor, is clearly a preservation of the debt, which was the sole vital principle of the judgment.' The instrument, in its inception, being a mortgage, it would continue to have this character impressed upon it, until foreclosure, or the purchase of the equity of redemption from the debtor upon a new consideration. This is upon the settled maxim of equity, “ once a mortgage, always a mortgage.”
This conclusion is in accord with the view expressed by us when this case was last before us on appeal. It was then said as to this agreement, per Brickell, C. J.: “ It is apparent from the most casual inspection of the agreement between the parties, that it was not intended the transfer of the personal property should operate as a satisfaction of the judgment, or embarrass or impair the rights or remedies of the appellee as a judgment creditor. Security for the payment of the judgment, and all other debts due the appellee, was all that was contemplated; and such security was intended to be afforded, while the debtors were to be saved from the injury apprehended from a forced sale of the property, the- right of redeeming by payment of the debts being secured to them.” — Rapeir v. Gulf City Paper Co., 69 Ala. 476, 482-83.
It is contended on behalf of Napier’s counsel, in the appeal taken by him, that the mortgage debt is usurious. The first ground taken is, that the agreement, above construed to be a mortgage, exacts not only the payment of the mortgage debt and interest, but an additional sum of twenty-five hundred dollars as a bonus required to be paid, as a pre-requisite to a re-purchase or redemption of the property by the debtors. The stipulation is, that the grantee will re-transfer the property, if the debtor pay this sum within thirty days, and secure by good and approved security, payable in three installments, “ all *136debts that may at the time be due it [the judgment creditor] from the parties of the first part,” together with interest, and certain expenses incurred. The amount of these debts, or of the several installments, is not specified. The agreement, therefore, is not incompatible with the theory, that the twenty-five hundred dollars should be regarded as a payment on the debt, and not as a bonus for forbearance. The law would so regard it, unless a contrary intention appears by clear implication ; especially in view of the fact, that usury is prohibited by statute, and is visited with the penalty of a forfeiture of the entire interest, and the taxation of full costs.' — Code, 1876, §§ 2092, 3130. The rule is universal, that where a contract is susceptible of two constructions, one of which will render it legal, and the other illegal, the court will incline to adopt the construction which will uphold the contract and preserve its validity. It is our opinion, that the agreement is not usurious on this ground.
It is further argued, that the contract is rendered usurious by the stipulation, that the creditor should have the use of the property without being held liable for any profit or revenue that might be derived from it. It may perhaps be true, as contended by counsel, that when a lender of money stipulates for a contingent benefit over and above the right to demand payment of his debt with legal interest in any event, the contract will, in such case, generally be held to be usurious. But usury, as often said, is chiefly a matter of intention, and the burden of proof is cast upon him who sets up the defense by seeking to impeach the legality of any given transaction. — Dozier v. Mitchell, 65 Ala. 511, 518; 2 "Parsons on Bills and Notes, 105-6. Hence it is held, that where the lender takes upon himself any real risk of loss, other than the insolvency of the borrower, the contract is not necessarily usurious. It was said in Wright v. Alexander, 11 Ala. 236, that “ to constitute usury, there must be a certainty of receiving more for the use of money, than legal interest. If there is a hazard of losing, so that the lender may receive less than legal interest, or lose the principal, the contract is not per se usurious, but may be declared so if the contract was a mere device to evade the statute.”
The use of the property, in the present instance, was fraught with great hazard of loss. This property consisted of a daily newspaper, with a job-office attached, which was at the time in operation, but appears to have been carried on at considerable pecuniary loss to the owners. If the mortgagee continued the business, it is necessarily implied from the terms of the agreement that he should do so at his own risk. If he did so, and incurred any loss, he would certainly be liable for it to the *137creditors who might be damnified. It was possible, therefore,that, under the contract, the mortgagee might imperil and actually lose in the enterprise an amount greatly larger than the interest of his entire debt, if not a large portion of the principal. This, in our judgment, rescued the agreement from the vice of usury, which is sought to be imputed to the intention of the contracting parties. — 2 Parsons on Bills and Notes, 412, 413.
We have considered the questions involved, without regard to the parol evidence which was introduced for the purpose of construing the intention of the parties. It is proper to add, that this explanatory testimony, if considered by us, would not authorize us to come to any other conclusions than those which we have announced
These views result in an affirmance of the decree of the chancellor on both appeals, which is accordingly ordered, such decree being, in our opinion, free from all error.