| Ala. | Dec 15, 1891
The plaintiff claimed title through a sale and conveyance made by Moses McGuire, as the trustee in a deed of trust in which David G. Jones was the grantor. To prove the deed of trust, the plaintiff offered the original record thereof as contained in one of the record books of deeds kept in the office of the probate judge of Tuskaloosa county. Objection was made to this evidence, on the grounds that the defendant had made demand on the plaintiff to produce the original of said deed of trust, and that a certified copy should have been offered instead of the original record. The plaintiff testified, without contradiction, that the original of the deed of trust had never been in his possession or'custody, or under his control. He was not the legal custodian of the instrument. That being the case, it was not incumbent upon him to produce it, or to account
Tbe several grounds of objection to tbe admission in evidence of tbe deed by Mioses McGuire as trustee to tbe plaintiff will be considered in detail.
(1.) Tbe plaintiff did not claim that tbe statement written upon tbe deed and signed by tbe justice of tbe peace was sufficient as a certificate of acknowledgment. It was relied upon as an attestation, and tbe justice of tbe peace was called as a witness to prove tbe deed. Tbe statement certifies “that tbe above named person signed tbis conveyance.” Tbis language fairly imports tbat tbe justice of tbe peace bad knowledge of tbe fact to wbicb be certifies, — tbat be was a witness to tbe signing. Tbe execution of a conveyance for tbe alienation of land, wben made by a person who is able to write, must be acknowledged, or attested by one witness, wbo must write bis name as a witness. — Code of 1886, § 1789. A proper attestation may be made by tbe mere signature of tbe witness. It is sufficient tbat tbe signature appears to be made for tbe purpose of attesting tbe execution of tbe conveyance. It bas been decided tbat a defective acknowledgment may operate as a substitute for tbe attestation of a witness, and in sucb case tbe officer is treated as an attesting witness. — Rogers v. Adams, 56 Ala. 600; Sharpe v. Ormc, 61 Ala. 263" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/sharpe-v-orme-6510178?utm_source=webapp" opinion_id="6510178">61 Ala. 263; Carlisle v. Carlisle, 78 Ala. 544. Tbe signature of tbe justice of tbe peace to tbe statement above referred to was sufficient as an attestation, and there was no error in overruling tbe objection to tbe introduction of tbe deed on tbe ground tbat it was not properly attested.
(2.) Objection was made to tbe introduction of tbe deed to tbe plaintiff, on tbe ground tbat it was shown and provided by tbe deed of trust tbat John ~W. Pruitt and John H. Spain were joint beneficiaries thereunder, and tbat tbe deed to tbe plaintiff shows tbat tbe sale under tbe deed of trust was made at tbe request of only one of tbe beneficiaries. By tbe power of sale contained in tbe deed of trust tbe trustee is authorized to sell in tbe mode prescribed, and to “pay off any of tbe bills indorsed by them [Pruitt and Spain], and pay all and whatever may be necessary to indemnify said John W. and John H., or either of them, and save them harmless in tbe premises.” Tbis language authorizes tbe execution of tbe power of sale for tbe indemnification of either Pruitt or Spain, for any loss sustained in conse
, (3.) Taking possession of tbe land by tbe trustee was not, by the terms of tbe deed of trust, made a condition precedent to tbe exercise of tbe power of sale. Tbe trustee was authorized, but not required, to take possession of tbe land before making a sale thereof. — -2 Jones on Mortgages, § 1782 ; Vaughan v. Powell, 4 So. Rep. 257 ; Riley v. Brewster, 44 Ill. 186" court="Ill." date_filed="1867-04-15" href="https://app.midpage.ai/document/kiley-v-brewster-6952506?utm_source=webapp" opinion_id="6952506">44 Ill. 186. Tbe terms of tbe instrument which was construed in tbe case of Foster v. Boston, 133 Mass. 143" court="Mass." date_filed="1882-06-29" href="https://app.midpage.ai/document/foster-v-city-of-boston-6420646?utm_source=webapp" opinion_id="6420646">133 Mass. 143, indicated that tbe execution of tbe power in tbe mode provided made it necessary for tbe trustee to acquire possession of the property before making a sale. In such a case, possession by tbe trustee is properly regarded as a condition precedent. It does not seem that such a condition could be satisfied by a mere demand for possession, as was intimated in tbe case of Roarty v. Mitchell, 7 Gray, 243.
(4.). Tbe deed to tbe plaintiff recites that the grantor therein, “after giving tbe notice required by said deed of trust, did, on or about tbe first day of December, 1866, at the court-house in said county, expose to sale,” &c. If a sale bad been made pursuant to tbe terms of tbe power, it was not material for tbe trustee to recite in bis deed the exact date of such sale. After tbe sale was duly made be could with propriety execute a deed to tbe purchaser, though be was unable to state therein tbe exact date of tbe sale. If tbe defendant was entitled to require tbe plaintiff to prove- a compliance with tbe provisions of tbe power, as to the notice of tbe time and place of sale, on tbe ground that the recitals in that- regard of tbe deed made by tbe trustee were not binding on a stranger (Wood v. Lake, 62 Ala. 489" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/wood-v-lake-6510344?utm_source=webapp" opinion_id="6510344">62 Ala. 489; 1 Devlin on Deeds, § 425; 2 Jones on Mortgages, §§ 1830 and 1896).; the consideration that tbe burden was on tbe plaintiff to make such additional proof would not justify the rejection of bis deed as a link in bis chain of proof.
(5.) Tbe name of tbe trustee is not mentioned in tbe body of bis deed; but tbe recitals thereof furnish tbe means of clearly identifying Moses McGuire as tbe grantor. Tbe deed recites: “Whereas, on tbe second day of August, 1858,
(6.) Tbe power in tbe deed of trust authorized tbe trustee to sell for cash. The payment of tbe plaintiff’s bid was a matter between him and tbe beneficiary of tbe sale, and with wbicb tbe defendant in tbis case bad no concern. By tbe arrangement recited in tbe deed to plaintiff, tbe grantor in tbe deed of trust obtained tbe credit and benefit of tbe amount bid. When tbis was done, neither be nor any other person who was not a beneficiary under tbe deed of trust could complain because tbe payment was not made in cash. Mewburn v. Bass, 82 Ala. 622" court="Ala." date_filed="1886-12-15" href="https://app.midpage.ai/document/mewburns-heirs-v-bass-6512869?utm_source=webapp" opinion_id="6512869">82 Ala. 622 ; Cooper v. Hornsby, 71 Ala. 62" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/cooper-v-hornsby-6511328?utm_source=webapp" opinion_id="6511328">71 Ala. 62.
(7.) It was not incumbent upon tbe plaintiff, in offering tbe deed to himself, to explain tbe delay in its execution. Tbe execution of the deed by tbe trustee in 1878 shows upon its face bis recognition of tbe sale made by him in 1866, and that tbe purchaser at tbat sale bad all along been entitled to a conveyance of tbe land sold. Tbe defendant was not a party to tbat sale, and, in making tbe objection tbat tbe delay was a badge of fraud,, be did not suggest any fact to show that be bad any interest in the matter which would entitle him to complain of tbe delay. — Broughton v. Atchison, 52 Ala. 62" court="Ala." date_filed="1875-01-15" href="https://app.midpage.ai/document/broughton-v-atchison-6508944?utm_source=webapp" opinion_id="6508944">52 Ala. 62. None of tbe grounds of objection to tbe introduction of tbe deed to the plaintiff were well taken.
There was evidence tending to show tbat, at tbe sale under tbe power, John "W. Pruitt, one of the beneficiaries under tbe deed of trust, bid off tbe lands, and afterwards directed tbe deed to be made to tbe plaintiff. It often happens tbat one who bids at an auction sale is acting for another person, or transfers bis bid to another. In tbe absence of fraud, there is no objection to such a transaction. If tbe ostensible purchaser directs tbe deed to be made to another, a stranger to tbe sale can not complain tbat tbe real purchaser did not make bis bid in person.' — 2 Jones on Mortgages, § 1896. Tbe motion to exclude tbe deed, because it was not made to tbe purchaser at tbe sale by tbe trustee, was properly overruled.
Tbe plaintiff did not demur to any of tbe seven pleas interposed by tbe defendant, but joined issue on all of them. Tbe question of tbe sufficiency of tbe 6th and 7th pleas as answers to tbe complaint was not raised in any manner. By joining issue upon them, tbe plaintiff admitted that each of them stated a defense which, if sustained by tbe evidence, would defeat tbe action. A case must be tried on tbe issues developed by tbe pleadings. If a false issue is made up, in consequence of a neglect to resort to tbe means provided by law for its elimination, tbe question thereby presented is one of fact for tbe determination of tbe jury, and if tbe proof sustains such issue, tbe party setting it up is entitled to a verdict and judgment on it.— Geo. Pac. Railway Co. v. Probst, 90 Ala. 1" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/ga-pacific-railway-co-v-propst-6513908?utm_source=webapp" opinion_id="6513908">90 Ala. 1; Allison v. Little, 93 Ala. 150" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/allison-v-little-6514371?utm_source=webapp" opinion_id="6514371">93 Ala. 150; Masterson v. Gibson, 56 Ala. 56" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/masterson-v-gibson-6509461?utm_source=webapp" opinion_id="6509461">56 Ala. 56. Tbe 6th and 7th pleas are pleas of tbe statute of frauds. In joining issue thereon, tbe plaintiff assumed tbe burden of showing facts which would, avoid tbe effect ■ of tbe pleas. He put himself in tbe attitude of affirming that, at tbe time of tbe sale by Moses McGuire to him/a note or memorandum thereof was made, expressing tbe consideration in writing, and subscribed by tbe party to be charged therewith or some person thereto by him lawfully authorized in writing; or that tbe purchase-money or some part thereof was paid, and that tbe purchaser was put in possession of tbe land by tbe seller. — Jonas v. Field, 83 Ala. 445" court="Ala." date_filed="1887-12-15" href="https://app.midpage.ai/document/jonas-v-field-6512987?utm_source=webapp" opinion_id="6512987">83 Ala. 445. Tbe provisions of tbe statute of frauds which were referred to in tbe pleas were applicable to tbe sale made by McGuire. Tbe objection that tbe benefit of these provisions was not available to tbe defendant (Lewis v. Wells, 50 Ala. 198" court="Ala." date_filed="1874-01-15" href="https://app.midpage.ai/document/lewis-v-wells-6508653?utm_source=webapp" opinion_id="6508653">50 Ala. 198; Cooper v. Hornsby, 71 Ala. 62" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/cooper-v-hornsby-6511328?utm_source=webapp" opinion_id="6511328">71 Ala. 62; Mewburn v. Bass, 82 Ala. 622), could have been raised by demurrers or replications to tbe pleas. No such objection having been interposed, and tbe plaintiff having failed to offer any proof that in tbe sale by McGuire there was a compliance with tbe statutory requirements referred to in tbe pleas, be failed to sustain tbe burden assumed by bis joinder of issue thereon; and tbe result was that, on these issues, tbe
In the foregoing opinion we have considered such questions presented by the rulings of the Circuit Court on tbe admission and rejection of evidence as are likely to arise on another trial.
Beversed and remanded.