113 Ala. 95 | Ala. | 1896
1. Where the execution of a private writing is necessary to be proved, for it to become legally admissible in evidence, its execution, if attested by a subscribing witness, should generally be shown by the evidence of such witness.-Ellerson v. The State, 69 Ala. 1; Russell v. Walker, 73 Ala. 315; Meyer Bros. v. Mitchell, 75 Ala. 481; Askew v. Steiner, 76 Ala. 221; R. & D. R. R. Co. v. Jones, 92 Ala. 226.
By statute it is provided, that conveyances which are acknowledged or proved according to law, and recorded within twelve months from their date, may be received in evidence in any court without further proof, (Code of 1886, § 1798) ; and “conveyances of personal property to secure debt, or to provide indemnity, must be recorded in the county in which the grantor resides, and also in the county where the property is at the date of the conveyance ; and if, before the lien is satisfied, the property is removed to another county, the conveyance must be again recorded within six months from such removal, in the county to which it is removed.” — Code of 1886, § 1806.
These two provisions are found in the Article of the Code having reference to the registration, acknowledgment and probate of conveyances of property. The Article following makes provisions for the protection of creditors and purchasers against dormant-conveyances and loans. Section 1814 in this Article provides, that “conveyances of personal property, to secure debts or to provide indemnity, are inoperative against creditors and purchasers without notice, until recorded, unless the property is brought into this State subject to such in-cumbrances, in which case four months are allowed for the registration of such conveyances,” &c.
It thus appears, that section 1806 above* quoted, was designed not to be a provision for the protection of bona fide purchasers without notice, for if that were the case, there would have been no necessity for section 1814. When, therefore, section 1798, specifying when conveyances are to be admitted in evidence as self-proving, and said section 1806, touching mortgages. on personal property, when and where to be recorded, both found in the same Article of the Code, are construed together, it becomes apparent, that no conveyance of personal property to secure debts or to provide indem’
The mortgage offered and admitted in evidence, without pooof by the subscribing witnesses, or one of them, to the instrument, against the objection of defendant, on that ground, was improperly admitted. Its caption is, “The State of Alabama, Walker County,” but it does not on its face disclose the residence of the grantor, or the situs of the property conveyed, at the-date of its execution, nor was there any proof as to where the defendant lived, or the personal property was situated at that time, nor that the property had been moved into another county other than the one where it was at the date of the mortgage. These were facts necessary to be shown by the prosecution, before the instrument could be admitted, on its acknowledgement by the grantor, as self-proving. As for anything appearing, the residence of the mortgagor and the ■ situs of the property, at the date of the execution of the mortgage, might have been in another county than Walker.-Coker v. Ferguson, 70 Ala. 284; Hart v. Ross, 57 Ala. 520.
2. The mortgage purports to secure a note by defendant and his wife, for $359, dated March 4th, 1891, and payable March 4th, 1892, to John W. Hood.
The State offered, and the court allowed to be introduced and read, a note by defendant and wife to said Hood of the game time and date, which note was attested by two witnesses. There was no proof of its execution, nor was it shown that it was the same note as the one described in the mortgage. Against the objections offered, it was not properly admitted.
3. As these defects in the proofs may be cured on another trial, it may be well to notice some of the other rulings of the court.
The mero motu charge of the court should hot have been given, as it was a charge on the effect of the evidence, without request from either party. But, it was a charge in the interest of defendant, since it instructed
4. The first charge asked by defendant should have been given. The evidence tended to show without conflict, that Snow held the mortgage by transfer from Hood, to whom it was given, as collateral to a debt Hood owed him. Snow, himself, testified that the mortgagor claimed that he only owed a balance of $30 on the mortgage, and sent him that amount by his son, Aus Jones, and offered it as a payment in full, if Snow would give up the horses, and that he, Snow, said to Aus Jones, “it was nothing to him, and that if Hood was willing he would do so.” There is no proof that Snow ever made known to defendant that he had a lawful and valid claim to the horses under a written instrument, and for aught appearing to defendant, Snow, was simply acting as agent for Hood in the collection of the balance due on the mortgage. That $30 was all that W. J. Jones, the mortgagor, owed Hood, and that he believed it was all be did owe him, there is evidence tending to show.
The said W. J. Jones testified, that on the day that Snow says the defendant took the horses and carried them to the mortgagor’s home, he, the mortgagor, told defendant, who is his son, that the mortgage was paid in full, and for him, the defendant, to take the property and carry it home. Snow testified, that he told defendant not to carry the horses off, but he did so anyhow, and carried them to the mortgagor’s home, where they still were, and had been ever since they were carried there.
Under this state of uncontradicted evidence, even if the mortgage had been properly admitted in evidence, the said charge should have been given. Without reference to the criminal intent, if it were admitted he had any, towards Hood, there is no proof, as we have stated, that defendant knew or had been informed of any claim that Snow had to the property, in the absence of
Reversed and remanded.