43 So. 219 | Ala. | 1907
— This is the second appeal in this case. — Morris v. Bank, 112 Ala. 638, 38 South. 801. The trial court instructed the jury that the proceeds arising from mortgaged property should be ahvays applied to the satisfaction of the mortgage debt unless the parties otherwise agreed. These charges Avere, of course, sound expositions of the laAv; and payment of the mortgages under Avliieh defendant sought to justify his appropriation of the property in question Avas made an issue by the replications. If these charges Avere abstract, as
Whatever may have been the doubts theretofore existing, Hamilton v. Griffin, 123 Ala. 600, 26 South. 243, Burns v. Reeves, 127 Ala. 327, 28 South. 554, and Debtor v. Henry, 144 Ala. 552, 39 South. 72, finally settle the law, that under section 3728 of the Code of 1896, any demand capable of measurement in a legal sense by a pecuniary standard, not sounding in damages merely, may be set off against that claimed, whether the action be ex contractu or ex delicto. The pleas here set up in an action of trover the conversion of other chattels by the plaintiff, and under the rule stated should not have been, as was done, stricken on demurrer.
On former appeal the validity of the attestation by Lester of the mortgage from Massey to the bank was declared. We do not think the fact that Lester was a stockholder in the bank — mortgagee—disqualified him ' from serving as a subscribing witness thereto. The Carlisle-Campbell Case; 76 Ala. 247, adjudged that the payee could not become the agent of the payor in making the latter’s mark to the instrument. It is true that, where a mortgage of chattels is executed by the mortgagor by his mark only, his signature (mark) must be attested by one who does and can write his name as a subscribing witness thereto. But this requirement is manifestly a totally different proposition from that announced in Carlisle v. Campbell, supra. In that case the execution itself of the mortgage, the affixing of the mortgagor’s signature, was the subject of the agency sought to be created. This was there condemned: Here the office performed by Lester, the stockholder in the mortgagee, was as a memorial of the mortgagor’s own act. The mark was made by the party to be charged, and the stockholder afforded, by his subscribing as a witness,
There is no analogy afforded by the inhibition the iaAv raises against a stockhóldér taking an acknoAvledgemént of a conveyance to his corporation. An efficacious aeknÓAvledgemeñt not only renders the instrument self-proving, if seasonably recorded, but it imports a verity against Aviiich none can be héard to complain, unless it is for duress or fraud. It is a quasi judicial, if not judicial, act of an officer, and his certificate cannot be questioned, if his jurisdiction AAras obtained, except on the grounds stated. A subscribing Avitness to any instrument, of course, bears nó such relation, nor is lie clothed Avith any such judicial poAver. A stockholder,we conclude, may serve the statutory purpose referred to, and the instrument Avill not be thereby invalidated.
We discover in the record no other error than that committed in sustaining demurrers interposed to the pleas of set-off,; and for this the judgment Avill be reversed, and the cause remanded.
Reversed and remanded.
