114 Ala. 15 | Ala. | 1896
The appellant in this case was indicted and tried for selling or removing personal property covered by a lienor claim. — Crim. Code of 1886, § 3835.
The lien upon the property the defendant was charged with having sold or removed, was created by mortgage. On the trial of the cause, the State offered this mortgage in evidence ; and the first question presented is, whether the execution of the mortgage was sufficiently proven to authorize its admission in evidence. The mortgage offered in' evidence was signed by the defendant, by his making his mark. This mortgage purported to be attested by two witnesses. One of these witnesses wrote his name as a witness, and the name of the other was written for him,, followed by his mark. The mortgage was neither acknowledged nor probated. The attesting witness, whose name was signed to the mortgage by making his mark, was the one who testified as to the execution of the mortgage in question.
At the common law, it was not necessary that private writings should be attested ; but this rule has been abrogated by statute. It was formerty unnecessary that mortgages of personal property should be in writing; and it has been expressly held in this State that written mortgages of personal property, which were signed by the mortgagor making his mark, and attested by two witnesses making their mark, was sufficiently valid to enable the mortgagee to base his claim to the property conveyed therein. This conclusion was rested upon the ground that a verbal mortgage of personal property was sufficient to pass the title to the mortgagee; and that, therefore, a mortgage of personal property so executed as to be invalid, if a mortgage of land, was, nevertheless, valid as to personalty. — Ala. Warehouse Co. v. Lewis, 56 Ala. 514.
By the act approved January 22, 1885, (Acts of
The very purpose of the statute in requiring that the making of a mark by the mortgagor in the execution of the mortgage should be attested by a witness who could write his name, is to prevent injustice or fraud being committed, and is intended as a security against clandestine conveyances — it is for the protection of the one who executes the instrument. It would be a violation of the words, and go far to defeat the .policy and emasculate the requirements of this statute, if it should be construed as sanctioning an attestation of a witness who makes his mark only, when the party executing the instrument subscribes only by a mark.
The rule is well settled, that where an instrument attested by a subscribing witness is directly in issue, its execution can be proved only by one or more of the subscribing witnesses, unless some excuse, sufficient in law, can be shown for not producing them. — Askew v. Steiner, 76 Ala. 218 ; Russell v. Walker, 73 Ala. 315 ; Ellerson v. State, 69 Ala. 1. A subscribing witness is defined by Mr. Greenleaf as “one who was present when the instrument was executed, and who, at that time, at the request or with the assent of the party, subscribed his name to it as a witness of the execution. If his name is signed, not by himself, but by the party, it is no attestation.” — 1 Greenl. on Evidence, § 569a.
The reason of and for the rule here announced is well demonstrated by the testimony in this particular case. The witness examined to prove the execution of the mortgage could neither read nor write. He testified on his direct examination that the mortgage offered in evidence was the mortgage executed by the defendant and which he witnessed. And yet, on being cross-examined, his testimony was “that he could not tell the mortgage introduced in evidence from any other paper, and that the only thing he knew about the matter was, that they told him it was a mortgage Joe [the defendant] signed, and that he (witness) was a witness to the mortgage, and that his name as a witness' was written on said mortgage and he signed by making his cross-mark; * * * * that he did not know whether the paper introduced as a mortgage was the paper signed by him or not.” Under such testimony, it certainly could not be contended that the execution of the mortgage was sufficiently proven to allow its introduction in evidence, under the rule announced above. The court erred in allowing this mortgage to be introduced in evidence. This necessitates a reversal of the judgment of conviction ; and as it is hardly probable that the same rulings of the trial court, which are the bases for the other exceptions reserved by the defendant, will again be made,
Reversed and remanded.