Mervine v. White

B. F. SAFFOLD, J. [After stating the facts.] The introduction of the writing claimed to be a mortgage, and of the note, without objection, presupposes proof of their execution, or the admission of the defendant to that effect. The writing is clearly a mortgage, which “ is a contract, whereby a debtor grants or conveys some estate or interest in land, or transfers certain goods and chattels to his creditor, subject to a proviso, that if the debt is discharged by a day named, the grant or transfer shall be void, and the debtor shall be entitled to repossess himself of his lands, or of his goods and chattels, and hold and enjoy them as if the grant or transfer had not been made. By a contract of this description, the right of property in the thing mortgaged passes to the creditor, subject to be divested by the payment of the debt at the appointed time.” Add. on Contracts, 291. In this description, the word “ mortgaged,” in the latter part, is used to denote the definition given to it in the first part. “ Mortgage ” is a legitimate term, expressing the nature of the contract, as clearly as the terms “ deed,” and “ grant,” or “ gift,” which are the very words used to convey the property in the instruments to which they give name. No form of words to constitute a mortgage is prescribed, and .no circumlocution defining the contract, intended more accurately than the word itself can be employed. 2. A mortgagee, whether of personalty or of real property, when the legal interest has been transferred to him, stands, in a court of law, in the same situation as if he were the absolute purchaser. 1 Chit. Gen. Prac. 467. The legal title to personal property, and the right to the immediate possession thereof, are sufficient to support the action of detinue. 1 Chit. Plead. 122; Hopkins v. Thompson, 2 Port. 433; Morrison v. Judge, 14 Ala. 182; Bell v. Pharr, 7 Ala. 807. As the defendant offered no evidence, we cannot see wherein plaintiff failed to make out her case. The judgment is reversed, and the cause remanded.