108 Ala. 76 | Ala. | 1895
Taking the evidence of the plaintiff on the (juestion of the delivery of the deed by her father to her to show no more than that after due signature and attestation of the paper it was filled by the grantor in the probate office for record — and it certainly shows this much —that constituted a legal and efficacious delivery completing the execution of the dead. — Elsberry v. Boykin, 65 Ala. 336.
We find from the evidence upon which the judge of the city court; heard this cause without jury, that J. T. Comer joined with his wife, Parmelia, in the execution of the deed to C. N. and Mary Towns in the manner essential to the alienation of a wife’s separate estate, and that this deed was duly attested by two witnesses, as the statute requires.
It is also clear upon the testimony, we thinlc, that this deed did not evidence the whole of the transaction which at the time of its execution transpired between the parties, but, to the contrary, that as a part of the same transaction and covered by the previous negotiations and understanding as a result of and under which the deed was executed, the grantees therein executed the instrument adduced in evidence by the plaintiff below, which must therefore be taken as a part of the deed as though it were physically incorporated therewith, and which is in the following language : ‘ ‘ This agreement entered into between C. N. and Miss Mary Towns, of the first part, and J. T. and Parmelia Comer, of the second part, wit-nesseth that in consideration of the sum of $657.70, due the party of the first part, the party of the second part have deeded to the party of the first part one hundred and five acres [of land] more or less upon the considera
There was a debt involved in the transaction which constituted the whole consideration for the deed of the wife’s lands to C. N. and Mary Towns. Its amount was $657.70, the sum recited in the agreement copied above as being due to the party of the first part to that instrument. This debt was contracted years before by J. T. Comer, to Warnock in greater part and to I. N. Towns in the remaining part. 1. N. Towns assumed the payment of the sum due Warnock from J. T. Comer at the latter’s request and took notes from Comer and wife for it. He also took their notes, it seems for the amount of the debt which J. T. Comer contracted directly with him. The debt thus due from J. T. Comer to I. N. Towns was in some part, it may be concluded, for family necessaries suitable to the degree and condition in life of Comer and his wife and family, and might therefore have been made a charge upon her land, but this not on the theory that it was her debt at all, and the existence of light to im
Upon these considerations we hold that the deed of Parmelia and J. T. Comer to C. N. and Mary Towns was made to secure the debt of plaintiff’s husband, and was therefore void. Plaintiff having shown title in herself and this alleged deed being inoperative to divest it out of her, she was entitled to recover the land, and the damage awarded; and the judgment of the city court to that affect must be
Affirmed.