Coker v. Ferguson's Adm'r

70 Ala. 284 | Ala. | 1881

STONE, J.

Our statutes — Code of 1876, §§ 2145-6 — declare in wliat manner deeds are to be executed, to operate valid conveyances ,of land. They “ must be signed at their foot by the contracting party, or his agent having a written authority ; or, if he is not able to sign his name, then his name must be written for him, with the words ‘ his mark ’ written against the same, or over it; the execution of such conveyance must be attested by one, or, where the party can not write, by two witnesses, who are able to write, and who must write their names.as witnesses.” Section 2146: “ The acknowledgment hereinafter provided for operates as a compliance with the requisitions of the preceding section upon the subject of witnesses.” Section 2158 gives the substance and form of the certificate of acknowledgment, which the statute declares shall dispense with the necessity of witnesses. To be effective, the substance— every material ingredient — of that certificate, must be expressed in the writing. A literal compliance is not necessary. — Sharpe v. Orme, 61 Ala. 263 ; Baucum v. George, 65 Ala. 259 ; Boykin v. Smith, Ib. 294. But, to constitute such deed self-proving, or evidence per se, it must not only be acknowledged or proven according to' law; it must have been recorded in the proper county, within twelve months from its date.—Code of 1876, § 2154.

The deeds offered in evidence by defendant, if certified in substantial compliance with the statute (§ 2158), were not void, but, not having been recorded within twelve months, they were not self-proving. The one having attesting witnesses is governed by rules different from those having no subscribing witnesses. The former must be proved by one or more of the subscribing witnesses, unless their absence is sufficiently accounted for. The latter may be proved by any competent witness, who can testify to the faetwm of the execution, or to the handwriting of tíre grantor.—Hatfield v. Montgomery, 2 Por. 58; Nolen v. Gwyn, 16 Ala. 725; 1 Brick. Dig. 550; Sharpe v. Orme, 01 Ala. 263.

2. The third charge given at the instance of plaintiff can not be vindicated. A subscribing witness is not required to know the contents of a paper he attests. All he is required to testify to, is the execution of the paper, which, in the case of a deed, implies signature and delivery. — Code, § 2159; 1 Brick. Dig. 550, §§ 290 to 293. If it had been shown that Coker, when he witnessed the deed, knew its contents, the charge, postulating that fact, would have been free from error.

3. There was some testimony tending to show an adverse holding of fraction JD, or some part of it. A patentee, or one holding in his right, may be barred of his right of entry, or right to defend, by ten years continuous adverse holding. The charge asked by defendant pretermits this phase of the case, and, for that reason, was rightly refused.

Eeversed and remanded.