The primary, fundamental factor in the determination of this cause arises out of the nature and, in any event, the proper construction of the instrument to be quoted in full. The majority opinion reproduces only a part of the instrument. This instrument bears date January 8, 1909, and was alone signed and acknowledged by R. S. Deramus, the husband of the Mary Alice Deramus named therein. That a husband may, without the joinder of the wife in the execution of the instrument, convey to the wife the legal title to land (except as restrained by the laws governing the alienation or incumbrance of the homestead), has been often declared in this jurisdiction. Turner v. Bernheimer,95 Ala. 241, 244, 10 So. 750, 36 Am. St. Rep. 207; Wallace v. Feibelman, 179 Ala. 589, 60 So. 290.
The body of the instrument entire reads:
"Know all men by these presents: That, whereas, I, R. S. Deramus, of the county and state aforesaid, have heretofore used and expended for my own individual use and benefit the sum (principal and interest) of two thousand dollars in lawful money of the United States, which said money the individual property and separate estate of my wife, Mary Alice Deramus; now, therefore, to secure her in the payment of the sum I have bargained, sold and conveyed unto her and by these presents do bargain sell and convey unto her all of my right title and interest, either at law, or in equity in and to the following named and described property, viz.: All the personal property of every kind and description which I now own, and also the following described real estate situated in the county and state aforesaid, viz.: The SW 1/4 of the NE 1/4 and the NW 1/4 of the SW 1/4. W 1/2 of the SW 1/4 in section 1, township 18, range 13; and the E 1/2 of the NE 1/4 in Sec. 13, township 18, range 13, and the NW 1/4 except 14 acres in the S.E. corner. To have and to hold the same to her and her heirs and assigns forever. But it is hereby provided that the said property both real and personal, shall never by contract, mortgage or otherwise be subject to my debts or the debts of my said wife and it is further provided that at the death of my said wife the said property shall descend to and become the property of the heirs of my body and her body now borne, or hereafter borne during our wedlock.
"In witness whereof, I have hereunto signed my hand and affixed my seal, this the 8th day of January, 1909."
Obviously the instrument was written by an unskilled hand. As usual, its construction is to be undertaken in the light of that fact. May v. Ritchie, 65 Ala. 602.
1. It expressly appears upon the face of the instrument that it was only intended to be a "security for the payment of a debt." After designating with particularity the source and amount of R. S. Deramus' obligation to his wife — an obligation to pay that resulted from his recited "individual use" of the "individual property and separate estate of my [his] wife, Mary Alice Deramus" — the instrument provides: "Now, therefore, to secure her in the payment of the sum," etc. The unauthorized appropriation of the money of another, as recited in this instrument, affords a sufficient consideration for a mortgage given to secure the payment of the liability so incurred. Griffin v. Chase, 36 Neb. 328, 54 N.W. 572. The conveyance of the property by this instrument was in pursuance of and consonant with the design thus plainly expressed, and nothing thereafter written in the instrument conflicts with or qualifies that unmistakable purpose and intent. In short, the instrument is in very nature a mortgage. These, among other accessible authorities, defining "mortgage" and announcing principles governing the rights of parties therein, require the conclusion that the instrument quoted is a mortgage: Ellington v. Charleston, 51 Ala. 166; Evington v. Smith, 66 Ala. 398,401; Jackson v. Rutherford, 73 Ala. 155, 157; Williams v. Davis, 154 Ala. 422, 425, 45 So. 908, defining a mortgage; Boyett v. Hahn, 197 Ala. 439, 442, 73 So. 79; Stollenwerck v. Marks, 188 Ala. 587, 65 So. 1024, Ann. Cas. 1917C, 981; Lewis v. Davis, 198 Ala. 81, 84, 85, 73 So. 419; Lewman v. Ogden, 143 Ala. 351, 359, 42 So. 102, 5 Ann. Cas. 265; 19 R. C. L. pp. 244-246. If an instrument is efficiently executed, whether it is a mortgage is a matter of intention. No particular form or phrase is requisite to the creation of a mortgage. Lewis v. Davis, supra. Courts of equity will supply the means omitted in the instrument to consummate and enforce the rights of the parties in the mortgage. Boyett *Page 147 v. Hahn, supra, among others. Aside from efficient execution under our statutes, the essentials to the creation of a mortgage are a debt or other obligation and the intent to subject property of the debtor described in the instrument to the payment or discharge of the debt or other obligation. Authorities, supra. The omission of a time for the payment of the debt or other obligation secured by a mortgage is not fatal to the validity of the mortgage; the law, intervening in such circumstances, requires the payment to be made within a reasonable time. Byram v. Gordon, 11 Mich. 531; Jones on Chattel Mortgages (5th Ed.) § 87. There can be no difference in principle between the application of this rule to the mortgage of chattels and to the mortgage of real estate, where other provisions of law are observed in the execution of the instrument. It is hardly necessary to add that a defeasance clause is not essential to the creation of a legal mortgage, if the intent to afford a security for the payment of an obligation is disclosed by the writing under inquiry.
Since the instrument above quoted recites that the relation of debtor and creditor existed at the time it was executed, and since it unmistakably appears to have been the intent of R. S. Deramus to afford thereby a security for the payment of the debt so recited, it seems clear to me that the quoted instrument was but a mortgage. If Mary Alice Deramus had sought the enforcement of it in a court of equity, it seems not debatable that she, as mortgagee therein, would have been accorded a decree vindicating and enforcing such rights as inured to her as mortgagee in the premises.
2. If, however, it should be assumed, in the face of the above-stated clearly expressed intent of R. S. Deramus to give his creditor, his wife, security for the payment to her of the amount he had used from her separate estate, that the instrument is a deed, not a mortgage, it seems to me equally clear, under a long line of authorities in this jurisdiction, that Mary Alice Deramus took, not a life estate, but a fee in the land described in the instrument. Code, § 3396; Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A. (N.S.) 719; Dickson v. Wildman, 183 Fed. 398, 105 C.C.A. 618 (the material part of the opinion in which was reproduced in Porter v. Henderson, 82 So. 673, 6741); Hamner v. Smith, 22 Ala. 433; Hunter v. Murfee, 126 Ala. 123, 28 So. 7. Read as a deed, the granting clause in this instrument evinced an unmistakable purpose to convey the fee to Mary Alice Deramus; and, to exclude all possibility of doubt with respect to this clause, the instrument purports to convey "unto her all of my right, title and interest" in and to the land described therein. In addition, the habendum is as follows: "To have and to hold the same to her and her heirs and assigns, forever." However, if the proviso with respect to the descent of the property after the death of Mary Alice Deramus is attached as a condition to the habendum clause, thereby necessarily instituting a conflict between it and the unqualified effect of the granting clause, the doctrine that the granting clause should prevail over the habendum should be accorded application, with the result that Mary Alice Deramus should, according to all previous authorities in this court, be declared to have taken the fee under this instrument, if it is regarded as a deed. Furthermore, notwithstanding there is no grant whatsoever to the heirs of the bodies of R. S. Deramus and his wife, born during their wedlock, the reading of the last proviso of the instrument even into the granting clause would but serve to constitute an estate tail, converted into a fee by our statute. Code, § 3397; May v. Ritchie, 65 Ala. 602; Slayton v. Blount, 93 Ala. 576, 9 So. 241; Wallace v. Hodges, 160 Ala. 276, 49 So. 312. The decision in Graves v. Wheeler, 180 Ala. 412, 61 So. 341, is inapplicable to the question presented on the construction of the instrument here under review. That case does, however, recognize the well-established rule — elaborately stated in Dickson v. Van Hoose, supra, and repeated in Head v. Hunnicutt, 172 Ala. 48,55 So. 161, and early affirmed in Webb v. Webb, 29 Ala. 588 — that the granting clause shall prevail over the habendum in cases of repugnancy. The deed considered in Graves v. Wheeler did not contain an unqualified habendum, consistent with the granting clause, as in the instrument here under consideration, and the deed there under consideration did not bear the expression of the grantor's purpose to convey "all of my [his] right, title and interest" in and to the land described in the deed, thus rendering impossible the acceptance of the theory on which Graves v. Wheeler was decided, viz., that "the granting clause does not expressly designate the estate conveyed, and there is nothing in the other parts of the deed to indicate the estate intended to be conveyed." While these material differences between the instrument considered in Graves v. Wheeler and that now under consideration should serve readily to distinguish that decision, it may be observed that the soundness of Graves v. Wheeler is quite doubtful when the pertinent doctrine of a long line of our decisions is noted in connection with the review of the correctness of that decision.
Whether R. S. Deramus entertained the design, in executing the instrument of January 8, 1909, to hinder, delay, or defraud his creditors, is a question not presented by the pleadings in this cause; and evidence to *Page 148 this end was not admissible under the issues thus made. According to Code, § 5232, an issue appropriate to the contest of this matter might have been made.
My opinion is that the decree entered in the court below is affected with fundamental error; that it should be reversed and the cause remanded in order that the real rights of the parties might be adjudicated in accordance with established principles in this jurisdiction. I therefore dissent.
1 203 Ala. 312.