127 Ala. 185 | Ala. | 1899
Neither of the defendants, who are the mortgagors in the mortgage sought to be specifically ¡enforced as a contract to convey title, and foreclosed, could write their names. Their names were written for them by John Adams, with the words his and her mark written over each name, with a cross mark between the words, his and her mark, as they appear. The mortgage was attested by said John Adams alone, whose name .appears signed thereto as a witness.
The Code, section 982, requires that conveyances for the alienation of lands “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 witness, or, when the party cannot write, by two witnesses who are able to write, and who must write their names as witnesses.” This method of conveyance here prescribed is exclusive ; the rule being, that “when a statute limits a thing to be done in a particular manner, it includes in itself a negative ; and the negative is, that it shall not be done otherwise. The limitation exists whenever the statute pre
It may be stated, therefore, that when husband and wife sign a deed -which purports to convey to another their homestead, and the wife acknowledges the same in due form to alienate a homestead, but the instrument is for any reason inoperative to convey the title of the husband, and is a nullity for that purpose, the separate acknowledgement of the wife to such instrument is not and never, in any proceeding, can be made of any validity, but the instrument remains as if her acknowledgement had, never been made thereto. — Cox v. Holcomb, 87 Ala. 589; Gardner v. Moore, 75 Ala. 397; Blythe v. Dargin, 68 Ala. 370.
These decisions are decisive of the one in hand. The lower court very properly sustained a demurrer to the bill.
Affirmed.