95 Ala. 293 | Ala. | 1891
The case of Carlisle et al. v. Campbell, 76 Ala. 247, is relied on to sustain the ruling of the Circuit Court, to the effect that the paper purporting to be a mortgage, which evidenced plaintiff’s title to the property in suit, had not been efficiently executed by the defendant. But, to our minds, there is such a material difference between the facts of that case and this, as that the principle there declared can not be applied here. In both cases, it is true, the alleged maker of the paper was unable to write his name. In that case, however, the payee not only -wrote the promisor’s name under the obligation, but also made his mark for him; while in this, the agency of the payee, or, more properly, grantee, extended no further than to subscribe the letters constituting the grantor’s name, and the latter himself affixed his mark thereto, thus doing not only all the law prescribes in such cases as necessary for him to do, but all that he could possibly do under the circumstances
Tbe authorities cited in Carlisle et al. v. Campbell all refer to instances where tbe obligee bad acted as tbe agent of tbe obligor in tbe execution of tbe instrument, tbe latter being able to write.
Tbe Oircnit Court erred, we think, in bolding tbe mortgage offered in evidence not to have been signed by tbe defendant. Its ruling in that regard is reversed, tbe nonsuit suffered in consequence of it is set aside, and the cause is remanded.
Reversed and remanded.