44 So. 424 | Ala. | 1907
It must be conceded that the deed purporting to have been executed by Christian & Craft Company to A. F. & D. Mackey on the 28th day of November, 1898, is not a self-proving instrument under section 992 of the Code of 1896. • But it is insisted by the plaintiff that the deed falls within the provisions of the curative act' of the Legislature approved the 30th day of September; 1903. The title of that act is in this language; “An act to-' legalize and malte effective the registration of deeds of conveyance Avhich have been filed and recorded in the office of the judge of probate of the proper county' of this state before or Avithin twelve months after the passage of this' act, but not within the time required by laAV,or recorded Avithout proper acknowledgment or probate.” — Gen-. Laws, 1903, p. 305. It seems to’be clear that that part of the act which provides for the recording of instruments within two years of the passage of the- act is invalid, and must under section 45 of the' Constitution, fall, because not expressed in nor covered by the title of the act. This- being true, it follows that, notAAdthstanding the deed AAas acknowledged and recorded within two years from the passage of the act, the court did- not err in sustaining the objection made to the introduction of the deed in evidence.
It is obAdous that the evidence falls short of showing title in the plaintiff by adverse possession. Indeed, there is no such contention on the" part of the plaintiff. He relies for-recovery on his paper title, and must stand or fall by it. In ejectment, to authorize a recovery by the plaintiff,- it must be made to appear by the evidence that the plaintiff, at the commencement of the suit, had the legal title to the land sued for and the right to the immediate possession. A further cardinal rule applicable to this character of action is that the plaintiff must re
Plaintiff claims immediately from A. F. & L>. Mackey. The bill of exceptions shows that H. W. Lightbnm was legally constituted attorney in fact by the individual members composing the firm of A. F. & D. Mackey to convey lands owned by said firm in the states of Alabama and Mississippi. The power of attorney purports to have been executed on the 2d day of November, 1890. In the twelfth paragraph of the bill of exceptions we find these recitals: “Original deed from Campbell T. Mackey, A. F. Mackey, and John Griffin, and their wives, by H. W. Lightbum, as attorney in fact, to A. F. Carpenter, conveying the lands described in the first paragraph of this bill of exceptions; said deed reciting that Campbell T. Mackey, A. F. Mackey, and John Griffin were partners doing business in the city of Liverpool, England, under the firm name of A. F. & E. Mackay.” The bill of exceptions purports to set out all of the evidence, and the foregoing is all that is said about the deed from A. F. & D. Mackay. The date of its execution is noAvhere shoAvn. Bills of exceptions must be construed most strongly against the party excepting, and all reasonable presumptions Avill be indulged in favor of the rulings of the court to support the judgment appealed from. Following these rules, Ave may presume that the original deed shoAved that it was executed after the suit Avas commenced, and that for this reason the court gave the affirmative charge as requested by the defendant.
It folloAvs from the foregoing considerations that the judgment must be affirmed.
Affirmed.
