Logwood v. Hussey

| Ala. | Dec 15, 1877

STONE, J.

Section 2707 of the Code of 1876 declares, that “the property of the wife, or any part thereof, may be sold by the husband and wife, and conveyed by them jointly, by instrument of writing attested by two witnesses.” The testimony tends to show, that the deed offered in evidence by plaintiff was not attested by the two witnesses in the presence of each other, but that the female attesting witness was not present when the grantors signed their names. Her hand-writing to the attestation is proved. The other witness testified, that he saw the grantors- sign their names, and signed his name as a witness in their presence. It is contended, that this is not a sufficient attestation, within the statute above copied. The grantor, John E. Logwood, being introduced for the purpose, testified that the signature of Miss McDonald, as a subscribing witness, is in her proper hand-writing. No proof was offered, by him or any one else, of the circumstances under which she signed her name. We think the state of the record justifies us in inferring that, after the deed was signed by the grantors, in the presence of, and attested by Barksdale as a witness, the grantors appeared before Miss McDonald, and requested her to sign it also as a witness, that it might conform to the statute requiring two attesting witnesses; and that, thereupon, she did so sign it.

Our statutes in regard to the attestation of wills are not materially different from that copied above in reference to conveyances by husband and wife, of the wife’s statutory separate estate. The former statute was, that wills of realty must be “ attested by three or more respectable witnesses, subscribing their names thereto in the presence of such devisor.” — Clay’s Dig. 596, § 1. The language of the Code is, “attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.” — Code of 1876, § 2294. In Hoffman v. Hoffman, 26 Ala. 535" court="Ala." date_filed="1855-01-15" href="https://app.midpage.ai/document/hoffman-v-hoffman-6505517?utm_source=webapp" opinion_id="6505517">26 Ala. 535, and in Woodcock v. McDonald, 30 Ala. 411" court="Ala." date_filed="1857-01-15" href="https://app.midpage.ai/document/woodcock-v-mcdonald-6506006?utm_source=webapp" opinion_id="6506006">30 Ala. 411, the witnesses did not sign in the presence of each other, nor did they all see the testator sign the will. Each of the wills was held to be properly executed. In the former of those cases, speaking of _ witnesses attesting in the presence of each other, it was said: “ The statute does not require this, in terms; and although some of the earlier cases seem to have thought it necessary, under the statute of Car. 2, c. 3, the language of which is, in this respect, almost identical with our own, the contrary was expressly ruled in Smith v. Cadron, 2 Vesey, Sr., 455, which decision has been followed, both in England and the United States.” We think this deed was sufficiently proved to go to the jury.

2. There is nothing in the present record that justifies the conclusion, or inference, that Hussey purchased from Mason & Co. the debts or mortgages on Logwood and wife. The testimony of Logwood himself is, that Hussey paid the debt; and one of the notes secured by the mortgage is marked “paid,” across its face. Neither is there any evidence that Hussey retained any debt on Logwood; but, on the contrary, it is manifest that neither Logwood nor Mrs. Logwood was under any legal obligation to repay to Hussey the money he paid to Mason & Co. for them. They reserved but a privilege to repossess themselves of the title to the property, but made no promise to do so. The only promise made was, to pay hire for the property, in the event they did not repay to Hussey the money advanced by him, with interest. This transaction was not a mortgage, but a, sale to Hussey, with a privilege reserved to repurchase; a sale, upon a consideration paid in money, and without evidence that the agreed price was disproportionate to the value. The case is brought directly within the rule declared in Peeples v. Stalla, and Haynie v. Robertson, at the present term. It is not necessary to repeat the argument on which those cases rest.—See, also, McKinstry v. Conly, 12 Ala. 678" court="Ala." date_filed="1847-06-15" href="https://app.midpage.ai/document/mckinstry-v-conly-6503487?utm_source=webapp" opinion_id="6503487">12 Ala. 678. Having arrived at the conclusion that the present transaction was a sale with condition to repurchase, it follows that the sale, admitting the property sold to have been the statutory separate estate of Mrs. Logwood, was valid and binding.—See Peeples v. Stalla, supra.

We deem it unnecessary to consider in detail the various questions reserved in the trial of this cause. In none of them do we find any errors prejudical to appellant. A few of them are, perhaps, a little too favorable to her; but on the questions of merit, we fully approve the rulings of the Circuit Court, and its judgment is affirmed.