129 Ala. 435 | Ala. | 1900
¡Section (5 of the act provides that “nothing in this act shall be so construed as to prevent the court from trying cases without a jury at any regular term in any case in which the jury is waived.” This last section manifestly refers to trials of causes without jury on waiver of such trial by’ the parties, under the general law, without reference to such waiver under this special statute.. Code (section 3319 et scq.) provides for this waiver, in stating that “an issue of fact in a civil case may be tried and determined by the court without the intervention of a jury, whenever the parties, or their attorneys of record, file an agreement in writing with the clerk waiving
If the plaintiff proved, that defendants’ allegation in
The plaintiff claimed title, from Edward Littlepage, and the defendants from him and his wife, Mariah. Both these parties mortgaged the lot to Wm. Richardson, from whom by mesne conveyances introduced in evidence, the defendants claim title and right to possession. By excluding the said mortgage of the Littlepages to Richardson, the other mesne conveyances to defendants lacked connection with the Littlepage title, and deprived defendants of evidence to show a-superior title to plaintiff, who claimed title alone as administrator of said Edward, who was the owner only of an undivided half of the property. With the excluded Richardson mortgage before the court, the finding might well have been
The defendants attempted to show title from Edward Littlepage and wife, under whom both parties claim, by showing a mortgage from them to William Richardson, purporting to have been executed on the 31st March, 1883, and the subsequent foreclosure of the same, and title derived thereunder by Percy B. Fearn, and then, by his devise1 of the same by last, will to defendant, Ann Fearn. !
The land in question was shown to have been the homestead of said Edward Littlepage and wife. The mortgage to Richardson, was executed in the presence of two witnesses, but the wife, Mariah Littlepage, acknowledged ¡the fame, separate and apart from her husband, as appears, before the said Richardson, as judge of the probate court of Madison county, and he was the grantee in the mortgage. This mortgage was offered in evidence by. the defendants, and plaintiff objected to its introduction, on the grounds that the mortgage was not self-proving, and that the property conveyed was the homestead of Edward Littlepage, and the separate acknowledgment and the general acknowledgment were taken before William Richardson, judge of probate, who was grantee in'said mortgage. The court, sustained the objection.
That William Richardson, the judge of probate before whom .the acknowledgements of the mortgage were taken, was the grantee therein, seems not to have been disputed, but, in sustaining the'objection of plaintiff to the introduction of the mortgage on this ground, the court,- it.appears-, acted as though the fact, the basis of the objection, was admitted. The question presented, then, is whether the acknowledgements of the mortgage and .the mortgage itself should have been held void on collateral- attack made on the -objection raised against their validity for this apparent defect. We have but recently held that a mortgage acknowledged before a no
-It appears that William Richardson foreclosed this mortgage1, purchased and. received a conveyance to the property through a conduit of title. The defendants ofj fered the deed, of, William Richardson to Ernest Robinson, on foreclosure -of said mortgage, and Robinson’s deed back to Richardson, the. one of date 24th and. the other of date 25th January, 1887; also the deed of William Richardson to Percy B. Fearn, of date 5th March, 1897, each -deed to the -same property; the transcript of the will of Percy B. Fearn and its probate, devising the property to his mother, Ann Fearn, one of the -defendants, and proved by said Richardson that said Littlepage borrowed,$100 from him ,and gave him -said mortgage, to secure the same; that life was judge of probate of Madison county at the time, and the acknowledgement -of the mortgage was taken by his bonded'clerk, Win. Vaughan, and on foreclosure, of the mortgage, he made the deed, after the death of Ed>vard Littlepage, by the direction of Mariah, his surviving wife, to Mr. Fearn, who, she told him, would purchase the property. To the introduction of the foregoing evidence, no objections were interposed.
-The defendants then offered to introduce in evidence
For the errors indicated the judgment below must be reversed and the cause remanded.
. Reversed and remanded.