
    Ingram v. Illges, Adm’r.
    
      Bill in Equity to Foreclose Mortgage.
    
    1. Latent equity, burden of proof'. — In a proceeding "by a mortgagee to foreclose his mortgage on lands occupied by the mortgagor and his wife, and it is sought to show that the mortgaged property bolong-ed to the wife, having been purchased with her money, the burden is upon the party asserting that fact to prove it — being purely defensive matter.
    2. Oral declarations received with caution. — The alleged declarations of the purchaser of land, that he was buying it for his wife, and that she was furnishing the money, testified to ten years afterward, are of a species of evidence, which all courts receive with great caution, which caution increases with the lapse of time since the alleged declarations, and no fact being shown to impress them particularly upon the memory of the 'witness
    3. Leed, in equity may be shown to be a mortgage ; and, vice versa. The grantee of a deed absolute on its face, may, in a court of equity, have it declared a mortgage, as the grantor may show that such deed is not what it purports to be. In such case it must be shown that the agreement, that the deed should operate as a mortgage was contem-poroneous with its execution ; or, if subsequent, it was upon a new consideration; and, the proof must be clear and convincing.
    Appeal from Bussell Chancery Court.
    Heard, before the Hon. JOHN A. Foster.
    This was a bill filed on Sept. 25th, 1891, by Charles E. Ingram, to foreclose a mortgage executed to him by C. L. Heard, and his wife, Katie, on a house and lot in the town of Hatchechubbee, Bussell county, given to secure a joint note executed by them to the complainant. At the time the bill was filed, both said C. L. Heard and his wife, had died. Charles B. Illges, the administrator of Katie Heard, the heirs-at-law of said C. L. Heard, and the partnership of Garrett & Sons, who claimed some -interest in the property, were made parties defendants. At the time of the execution of the mortgage to complainant, the said Heard and wife lived together on the premises sought to be foreclosed, which were bought by salid C. L. Heard, in 1883, from one L. Margolius, the purchase-money for which had all been paid, but no deed had been executed-to the purchaser.
    ■" In May, 1888, while the mortgagors occupied the premises, the mortgage to complainant was given for the purpose of getting family supplies, which were actually supplied to the mortgagors, most of them on the personal order of the wife.
    
      The defendants, Garrett & Sons, answered, making tlieir answer a cross-bill, setting np a balance due said partnership on a prior indebtedness from C. L. Heard, secured by a mortgage, (though in form, a deed) upon this property, which they pray may be foreclosed and their debt be first satisfied out of the proceeds.
    C. R. Illges, as adm’r /of Katie Heard, dec’d, defends by answer, seeking to show that the mortgaged property was the separate statutory estate of the wife, bought with the money received by her from her guardian. The evidence on the hearing, and the action of the Chancery Court, is shoAvn in the opinion of this court. Garrett & Sons, appeal, assigning as error the decree rendered by the chancellor on their cross bill. The complainant, Ingram, appeals, assigning as errors. (1.) The decree rendered by the chancellor. (2.) The refusal of the chancellor to exclude the testimony of the witness, Margolius.
    W. J. Samford, for appellant, Ingram.
    1. Husband and wife living on land, with no paper title, the possession is the possession of the husband, and possession is prima facie evidence of title. Schouler’s Husband & Wife, § 221. 2. There is no dispute as to the mortgage; none as to the bona fides of the debt. The mortgage, if property belonged to the husband, is valid; if property belonged to wife, then the mortgagee was a bona fide purchaser, for value, without notice of the wife’s latent equity. 3. The testimony of Margolius, by which a latent equity in favor of the wife was sought to be set up, was incompetent, illegal and irrelevant. 4. A trust in land cannot be created by parol. 5. The evidence of Margolius was in conflict with that of Brinson, and the burden is on appellee. Besides, the husband and wife, by their act in mortgaging the property as Lite homestead of the husband, corroborate Brinson.
    Thornton &McMiohael, and J. M. Chilton, for appellants, Garrett & Sons.
    (No briefs.)
    L. W. Martin, for appellees.
   STONE, C. J.

The original and amended bills were filed by the appellant, Ingram, to foreclose a mortgage on a lot in Hatcliechubbee, Ala., executed on the 1st day of May, 1888, by C. L. Heard and Avife, to secure the payment of their joint and several bill single, for the sum of two hundred dollars, payable October 1st, 1888, and any advances made themdur-ing tbe current year. Tbe cross-bill was filed by tbe appellants Garrett & Sons, alleging, in substance, that a conveyance of tbe lot executed by Heard and wife, on tbe 22d day of May, 1887, to I. S. Garrett, tbougb in form absolute, was intended as a mortgage; but tbat there was of tbe debt intended to be secured an unpaid balance, wbicb was due and owing ro tbe partnership of Garrett & Sons, of wbicb tbe grantee, I. S. Garrett, was a member, and praying a foreclosure. Eacb of these conveyances was acknowledged by tbe wife in tbe form required to convey tbe homestead. Tbe defense interposed is, that tbe lot, tbe subject of tbe conveyance, and of tbe mortgage, was the separate estate of the wife, the debts were tbe debts of tbe husband, and she bad not capacity to mortgage them for tbe security of tbe debts of tbe husband. On the bearing, tbe pleadings and evidence, tbe chancellor was of tbe opinion tbe evidence sustained all tbe defense, and rendered a decree dismissing tbe bill, from wbicb these appeals are taken.

Tbe theory of tbe defense was, tbat tbe lot was purchased with the moneys of tbe wife ; or, if not purchased with her moneys, but with tbe money of tbe husband, be intended an investment for her, to reimburse money of hers be bad invested to bis own use. This is matter strictly and purely defensive, tbe burden of proving wbicb rests upon tbe party asserting it. Tbe burden of proving a disputed fact, in all cases, rests upon tbe party asserting its existence, and claiming to derive right and benefit from it. And if tbe evidence in reference to it does not preponderate in favor of its existence, tbe party must fail for want of proof.— Lehman v. McQueen, 65 Ala. 570. Tbe legal title to tbe lot resides in tbe appellee, Margolius, but it is admitted tbat be sold tbe lot to tbe husband, receiving from him full payment of tbe purchase-money. Nor is it matter of dispute tbat tbe bus-band on tbe purchase entered into possession, and made valuable improvements, converting tbe lot into a homestead for himself and family. It is shown by tbe evidence of Brinson, in whose service tbe husband was engaged at tbe time of tbe purchase of tbe lot, that be loaned him tbe money to pay tbe purchase-money; and tbat subsequently be and Ingram loaned or advanced him tbe greater part of tbe money to pay for tbe improvements. It does not appear tbat, subsequent to tbe marriage, tbe wife bad exceeding one hundred and seventy-five dollars in money, and this was more than two years prior to tbe purchase of tbe lot; and it is not shown tbat any part of this sum ever passed into tbe possession, or under tbe control of tbe husband, except as it may be matter of inference from tbe declarations be is said to liave made to tbe vendor, Margolius, at tbe time of tbe purchase of tbe lot. These declarations as testified to by Margolius, near ten years after they were made, are, that tbe husband said be was making tbe purchase for bis wife, and that she was furnishing the money. Tbe testimony of Brinson is direct and positive to tbe specific facts, that be loaned tbe husband, on bis own credit, tbe money with which the purchase-money of tbe lot was paid; and that be and Ingram loaned or advanced him tbe greater part of tbe money used in making tbe improvements. If tbe purchase-money was loaned by Brinson, it could not have been furnished by tbe wife, as these verbal declarations import. These declarations are of a species of evidence, which, for obvious reasons, in all courts,'are received with great caution; and tbe caution necessarily increases, when, as in this case, there is such a lapse of time betweeen their utterance and tbe attempted proof of them, no fact being shown to impress them particularly on tbe memory of tbe witness.—1 Greenl. Ev. § 200; Garrett v. Garrett, 29 Ala. 439; Wittick v. Keiffer, 31 Ala. 199. We do not think tbe evidence of these declarations should be considered as outweighing tbe evidence of Brinson, direct and positive to tbe specific facts that be loaned tbe husband, on his own credit, the money with which the purchase-money of tbe lot was paid; and that be and Ingram loaned or advanced him tbe greater part of tbe money with which tbe improvements were made. Tbe claim of tbe personal representative of tbe wife, that tbe lot was her separate estate, fails for tbe want of evidence to support it.

It is true that tbe grantee of tbe deed, which is absolute on its face, may, in a court of equity, have it declared a mortgage, and as a mortgage foreclose it. In such case, tbe same rule applies, which is applied when tbe grantor asserts that such deed is not as it purports to be, an absolute conveyance. It must be shown that tbe agreement that tbe conveyance should operate as a mortgage was contemporaneous with its execution ; or, if subsequent, that it was supported by some new consideration. And tbe proof of the agreement must be clear and convincing.—Bryan v. Cowart, 21 Ala. 92. We do not find in tbe record evidence to support tbe allegations of tbe cross-bill in this respect. It may be, tbe answer of tbe personal representative of tbe wife is susceptible of being construed as admitting tbe deed was intended as a mortgage. However that may be, tbe answer is not evidence against tbe infant defendants, her heirs, and tbe lieirs of ber husband. There is, therefore, no error in the decree of the dismissal of the cross-bill, and in this respect the decree of the chancellor must be affirmed.

The absolute conveyance, though prior in point of time to the mortgage to the appellant, was not interposed as a bar to the relief sought by the original and amended bills. On the contrary, it was agreed between the parties, the appellant and the complainants in the cross-bill, that the mortgage to the appellant was entitled to foreclosure. The debts secured by the mortgage are the debts of the husband, though the wife joined him in the execution of the bill single. The mortgage is properly executed and acknowledged to convey the homestead, and is a valid, subsisting security for the debts.

The result is the decree of the chancellor on the original and amended bills must be reversed, and a decree here rendered granting appropriate relief to the appellant Ingram.

It is referred to the register to take the proper account, showing the amount due complainant, including interest until the coming in of the report. All other questions are reserved for decision by the chancellor.

^Reversed and rendered.  