Hart v. Ross & Garner, 57 Ala. 518

Hart v. Ross & Garner

57 Ala. 518 | Ala. | 1877

STONE, J.

1. The deed in the present case was executed in the State of Texas, has two subscribing witnesses to it, and was proved by one of the subscribing witnesses in the exact form furnished by our statute, (Code, § 2159,) before, and certified by a person representing himself as a notary public of Texas, and authenticated by a notarial seal. This is strictly in accordance with our statutes, and authorized the registration of the deed, and made it self-proving, if recorded in the county where the lands lie within twelve months after its execution. Such certificates, when made by a notary public, and attested by his official seal, are intended tq be self-proving, for the law has made no provision for authenticating them. — See in connection sections 2147, 2152-3-4-6-9, 2160. Nothing short of this will give effect to these several sections.

2. The twelve months allowed within which to record the deed, and thereby make it self-proving, was extended by the act “ to authorize the filing and recording of certain deeds of conveyance therein named, in the office of the Probate Courts of this State,” approved March 20, 1875. — Pamphlet Acts, 180. By that statute, parties were allowed twelve months after its passage within which to record any deed of conveyance of any kind, heretofore made and executed as required by law at the date of its execution; “ and when so filed and recorded, said deeds have the same force and effect in all things as they would legally have had if they had. been filed and recorded within the time required by law at the time of the execution of such deed;” with an exception not necessary to be now considered. This statute was not .necessary, to authorize the registration of said deeds. That had been provided for by section 2153 of the Code; and such registration would operate as notice. The only purpose the legislature could have had, was to allow a further time within which to record deeds properly executed and certified, and thus make them self-proving. Thus construed, the statute has a healing, remedial effect; while any other construction leaves it inoperative. It was but the creation of a new rule of evidence, and was operative on existing conveyances. We think the deed should have been received in evidence, without any other proof than that furnished by the certificates.

The act of March 20, 1875, appears to have been omitted from the Code of 1876.

Judgment of the Circuit Court reversed, nonsuit set aside, and cause remanded.