
    (89 South. 270)
    JOHNSON v. SOUTH.
    (6 Div. 424.)
    Supreme Court of Alabama.
    May 19, 1921.
    Mortgages <&wkey;38(2) — Proof must be clear that absolute deed a mortgage.
    To have complainant’s absolute deed declared a mortgage, Ms evidence must be clear, unequivocal, and convincing.
    Appeal from Circuit Court, Fayette County; T. L. Sowell, Judge.
    Bill by Tbomas G. Johnson against M. D. South to declare a deed a mortgage and to redeem. Prom a decree for the respondent, the complainant appeals.
    Affirmed.
    The facts as insisted upon by complainant are that he had made a mortgage to another which had been foreclosed, and that he procured the respondent to redeem for him and executed the deed with the understanding that it should De a mortgage and that the respondent would reconvey to Mm when the amount he had paid out had been repaid. He also claimed that some had been repaid, but that on his tender of the remainder South declined to recognize the agreement. This was in the main disputed by the respondent.
    Ray & Cooner, of Jasper, for appellant.
    A tender was not necessary as complainant was in possession. 128 Ala. 380, 29 South. 547; 100 Ala. 612, 13 South. 679; 84 Ala. 302, 4 South. 270; 120 Ala. 46, 23 South. 674. The case made called for the relief prayed and the court erred in its decree denying relief. 162 Ala. 496, 50 South. 127; 155 Ala. 516, 46 South. 760; 155 Ala. 546,'46 South. 851; 157 Ala. 91, 47 South. 226; 157 Ala. 227, 47 South. 724; 149 Ala., 174, 43 South. 360; 143 Ala. 665, 42 South. 94; 86 Ala. 333, 5 South. 465; 151 Ala. 171, 44 South. 97; 72 Ala. 366.
    W. S. McNeil, of Payette, for appellee.
    The evidence, under all the authorities, failed to make out complainant’s case, and the court properly so decreed. 98 Ala. 511, 13 South. 548 ; 93 Ala. 262, 9 South. 177; 86 Ala. 333, 5 South. 465; 84 Ala. 219, 4 South. 153; 83 Ala. 396, 3 South. 698; 80 Ala. 61; 80 Ala. 16; 60 Ala. 217.
   McCLELLAN, J.

The complainant (appellant) sought to have an instrument, in form a regular deed, executed by complainant to respondent (appellee), declared a mortgage. The court denied the relief. To entitle a complainant to such relief, the evidence conducing to a conclusion favorable thereto must be clear, unequivocal, and convincing. Rodgers v. Burt, 157 Ala. 91, 93, 47 South. 226, among others. See elaborate annotations in L. R. A. 1916B, 193-196. In this cause the evidence is in inexplicable conflict between the parties. The requisito certainty of conviction that the parties intended, contemporaneously, the creation of a security for a debt ratber than a sale outright, is not afforded by the evidence. The complainant did not meet the measure of proof required of him. The decree denying relief was hence well render^..

Affirmed.

ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.  