The Montgomery advertiser., 1908-03-15
ELLIOTT V. BANKsroN.


!. decided December 10. Iso7---45 So.
Rep. 173.l
/. Frauds: statute of: leases: au-
thority of agents: letters--A letter au-
thorizing a landlords agent to execute
a lease on certain lands for period of
three years. which was never consum-
mated. are not admissible to show au-
thority Of that agent In writing to ex-
ecute q lease on the same lands for six
of the statute OF frauds
3. Evidence; secondary evidence:
preliminary proof--In the absence of n
showing that the paper was lost, evid
snce that witness had read paper
held by defendants agents purporting
to have been signed by the defendant.
and the signature thereto being. In the
opinion of the witness. that of the de-
PENDANT, under which paper the agent
was authorized to lease any lands con-
trolled by defendant and to receive and
receipt for all rent, was inadmissible.
3. Frauds; statue of; lease; execu-
ton by agent: written authority; ev-
idence--In the absence Of proof OF the
date of the authority and that 1t was
In force at the time the lease was ex-
ecuted, the fact that witness had seen
a writing purportng to have been
signed by the defendant authorizing the
defendants agent to rent his lands. etc,
was not effectual to show that the
agent was authorized to execute the
lease in question.
4. Same; possession of lessee--where
an agent is without written authority
to execute a lease. and the lease ts
executed for q term longer than one
year, the fact that the agent put the
lessee in possession did not remove the
contract from the influence Of the stat
ute OF frauds. subdivision 5. Section
2153, Code 1896.
s.. Same; authority Of agent: evid-
ence--Evidence OF the fact that the
agent executed other leases on lands
Of defendant was not admissible to
show his authority to execute valid
lease to plaintiff for term of years.
g. Landlord and tenant; lease:
breach OF covenant; measure of dam
aees--The measure of damages for
breach of a lease for a term OF years by
eviction under a paramount title is the
value of the lease for the unexpired
term.
Appeal from Etowah Circuit Court
Heard before Hon. w. w Harrison.
Reversed and remanded. Opinion by
TYSON. q. j., HARRISON and Dowdell.
J. j., concur.
SMITH. ct al. v. SMITH. ct al.
Bill to Declare a Deed Absolute on It's
Face, a Mortgage and for Redemp-
tion.-(Declded December 10. 1907.
/, as So Rep. 1881
1. Mortgage: equitable MORTGAGE
deed absolute on it's face.--lA deed alb
solute on its face may be shown to be
a mortgage in equity.
2, Same:' deed as security for debt.
I'm order to characterize deed abso-
lutte on its face as a mortgage, the re-
lation of debtor and creditor must ex-
list between the parties and the instru-
ment given as security for the debt.
8, Same; pleading.--The averment
that before the execution Of deed. abb
solute on its face, the grantee stated
that he would procure and advance to
the grantor the money necessary to en-
able him to pay his secured debts and
to take a proposed composition of his
unsecured debts. and that the money
SO procured could be paid out of the
.grantor's assets, but which alleges no
certain agreement of the amount to be
advanced. the time for the advance
ment and the time of REPAYMENT. Is not
tantamount to an averment that at the
time of the execution Of the deed there
was any debt due or to become due
to create the relation of debtor and
creditor essential to make the deed a
mortgage.
4. Deeds; construction; constituting
instruments together.-Where a writ
ten instrument referred to the deed and
the deed and instrument were executed
at the same time they should be con.
strued together.
5. Mortgages; deed absolute as
mortgage; security for debt--Where
the wording and substance OF deed