Parsons v. Woodward, 73 Ala. 348

73 Ala. 348 | Ala. | 1882

STONE, J.

— The present suit was brought by Woodward and wife, and is a statutory real action for the recovery of the lands described in the complaint. The onus, as in all other cases, was on the plaintiffs to show at least aprima facie right to recover. Showing that, they could rest, and the onus would then be shifted, and the defendant would be required to rebut, or overturn that prima faeie case. The plaintiffs recovered below, and the defendant appeals. On him rests the burden of showing the circuit court erred to his prejudice. The errors assigned are all based on a bill of exceptions signed -by the presiding judge. Much of the testimony was documentary, and a motion is here made by the appellees to strike out and reject what purports to be the documentary parts of the bill of exceptions, because, not being copied in the bill when it yvas signed, it is claimed that they are not sufficiently described and identified in the paper which bears the judge’s signature, to authorize their insertion. When the bill was signed, it did not contain the documentary proof, copied vn extenso. There was a manifest attempt, in the body of the bill, to so refer to them, that the clerk could copy them at the proper places. Was this done with sufficient particularity'?

It is a rule, and the only' safe one, that, in judicial proceedings, nothing is to he left-to unrecorded memory. The record must speak by and for itself, without the aid of oral proof, or human recollection. Such is the - rule as to amendments nano pro time. — 1 Brick. Dig. 78-9. Recitals of record are, therefore, conclusive, and are not open to disproof by any testimony that is not itself a record, or quasi a record. — Deslonde v. Barrington, 29 Ala. 92. And the officer’s recollection of what took placo can not aid an imperfect record. — McDougald v. Dougherty, 39 Ala. 409. The record must be so complete, that a succeeding officer, coming into the place of the one before whom the business was transacted, can not reasonably mistake what was done. Applying this rule to a bill of exceptions, when a document is sought to bé made a part of it by reference, and not by copy, it must be so described that a succeeding clerk can readily and with certainty know what document or paper is referred to, without room for'mistake. Speaking on this subject, this court, at an early day, said, the reference must “ so describe the paper by its date, amount, parties, or other identifying features, as to leave no room for mistakes in the transcribing officer.” — Looney v. Bush, Minor, 413. That rule has been ever since strictly adhered to in this court. — Pearce v. Clements, at this term [ante, p. 256], which collects the authorities, and reviews them. We will follow the rules there laid down.

The plaintiffs, as the testimony independent of the deed tends to show, derived title to the land through a sheriff’s sale and conveyance, made January 6th, 1868. The recitals in the bill of exceptions tending to describe and identify 'the deed, are as follows: The sheriff had been sworn as a witness, and was on the stand. “ A paper -was here handed to the witness, and he, continuing to testify, said: ‘ This is a deed executed by me as sheriff to Minerva C. Woodward. The lands were sold on Monday, January 6th, 1868, for §4000 to Minerva O. Woodward, that sum having been bid for them by Joseph A. Woodward as trustee for-her. . . I made this deed, and made but the one to Mrs. Woodward. I made none to Joseph A. Woodward. I made the deed on the day of the sale, and before midnight. The sale was made about 12 o’clock, on Monday, January 6th, 1868, gnd between then and midnight I made the deed, though I can’t say exactly when. The deed is the only writing about the sale of the lands I ever made. I delivered this deed to Joseph A. Woodward on April 2nd, 1868. . . I never saw it any more till I acknowledged its execution, which was some time after the delivery of the deed to Woodward.’” The language of the bill of exceptions as to this deed is as follows: “(It is agreed that the clerk may here set out said deed in full, with its indorsements.)” The deed-copied by the clerk as the deed referred to, bears the name of the sheriff as grantor, is made to Minerva C. Woodward, dated January 6th, 1868, has a certificate in due form of law made by a justice of the peace, certifying the acknowledgment before him, April 20, 1868, and another certificate of same date by the probate judge, that the deed was filed with him for record. The lands described in the deed embrace the lands sued for in this action. Now, the sheriff in his 'testimony describes the deed by' its date, parties and consideration, as tíre same appear in the- deed itself; says he never made but the one deed to Mrs. Woodward, and no other deed in regard to these lands; says he acknowledged its execution some time after April 2nd, 1868; and the deed when produced contains .two official certificates, giving strong confirmative evidence of its genuineness. We think this deed is sufficiently identified and described to preclude mistake in copying. The sheriff’s deed must be regarded as a part of the bill of exceptions; but none of the other documents are sufficiently described to let them in.

The deed, we have said, bears date January 6, 1868. The certificate of acknowledgement bears date April 20,1868. As the deed has no subscribing witness, it was inoperative as a title until it was acknowledged. Being received for record in the probate office in less than twelve months after its execution, it became .self-proving. — -Code of 1876. § 2154. The circuit court did not err, either in admitting the deed in evidence as self-proving, or in allowing proof of its execution by the maker, for there was no subscribing witness, and the testimony was at most redundant.

Courts of law regard only legal titles to land, and can give no consideration to equitable rights. Hence, no matter what the strength of plaintiff’s equitable rights may be, the plaintiff, in such action as this, can not recover.— You v. Flinn, 34 Ala. 409; 1 Brick. Dig. 627, §§ 33, 34; Slaughter v. McBride, 69 Ala. 510. And where two sue jointly, both must be entitled to recover, or neither can. — Schaffer v. Lavretta, 57 Ala. 14.

The chief link in the title of plaintiffs is the deed made by Shouse, the sheriff, to Minerva C. Woodward, a married woman, and to her heirs and assigns. It ^contains no words qualifying her title, nor excluding her husband’s marital rights. This deed, as we have seen, was executed in 1868, and on its face conveyed to her a statutory separate estate, under our statutes known as the woman’s law. — Code of 1876, § 2705. In suits for such property, the wife must sue or be sued alone. — lb. § 2892. Now, inasmuch as the plaintiff, in a statutory real action, must recover on the strength of his own title, it follows that lie must show a prima facie right to recover, in the very action he is prosecuting, before the defendant need offer any proof. The most that can be affirmed of plaintiffs’ proof is, that it shows a po'ima facie right in Mrs. Woodward to maintain the action, and no right whatever .in her husband. In fact, it shows on its face that he has no title, legal or equitable, in or to the lands sued for. Governed by the face of the deed, he should not have joined as a plaintiff, and his joinder was fatal to Mrs. Woodward’s right to recover. — Schaffer v. Lauretta, supra. Nor could there be a joint recovery on Mr. Woodward’s prior possession. So far as that furnished evidence of a right to sue, it tended to show title in Mr. Woodward alone, and none in Mrs. Woodward.

But plaintiffs offered to prove, and were permitted to prove, that the consideration-money with which the land was purchased, was of the equitable separate estate of Mrs. Woodward. This, we suppose, with the intent of showing that the two had the right to maintain the action jointly. We need not announce what would have been the effect of such proof on the question •of parties plaintiff, if the proof had been legal. The claim of plaintiffs resting on a title deed which, on its face, showed that Mrs. Woodward should sue alone, it was not permissible to vary the terms of the deed by oral proof, and thus show that, in fact, another should be joined with her in the action'. A plaintiff’s right of recovery can not be established in this way. You v. Flinn, supra; Slaughter v. McBride, supra.

In what we have said above, we wish not to be misunderstood. If any question could have properly been raised in the court below, affecting the tona fides, as against creditors, of "Woodward’s course in having the title placed in his wife, then proof that the consideration either did or did not move from her would have been admissible. This question, however, ■could only be raised by or against creditors of Woodward, seeking to condemn the property as his. So far as the'appellant is concerned, it is immaterial whether the consideration moved from Mr. or Mrs. "'oodward. The material inquiry wasi whether there was a sufficient consideration to make a prima facie case. The real contention was between Mrs. Woodward as a purchaser, claiming in the right of creditors of Elston, whose rights, she asserts, had been transferred to her by the sheriff’s sale and conveyance, and the rights of Mr. Parsons as a mortgagee, whose title accrued after the debts were contracted, under which Mrs. Wood'ward claimed. In such issue,, as we have said, it was immaterial whether the sheriff’s deed should have been made to Mr. Woodward, or Mrs. Woodward.. That did not and could not affect Mr. Parsons’ rights of defense. These were the same in each case. In either event, the onus would be cast on the latter to prove his mortgage had a valuable and sufficient consideration. In either event, his mortgage would be open to attack for fraud, bad faith, or secret trust, if made out. -All we mean to affirm is, that in such an action as this, founded on documentary title, it is not permissible to aid the plaintiffs’ title by oral proof of an equity, •unless the nature of the adversary claim is such that the tona fides with which such title was acquired can be, or is in issue. And so, when the legal title is shown to be in one of two plaintiffs in an action for the recovery of land, it is not permissible to show, by parol proof of the consideration, that another may be joined as plaintiff.

Under these rules, the testimony introduced by plaintiffs tending to show the source from which the money was derived, with which the lauds were purchased, was irrelevant, and should have been excluded. Mrs. Woodward alone had the legal right to sue on the title she put in evidence. And that part of the general charge, which summarizes the main features of plaintiffs’ ease, and is made the subject of appellant’s first exception, should not have been given. It affirms that if the facts therein postulated be found to exist, this would discharge the burden of proof which in the first instance rested on the plaintiffs. In other words, that this would show a prima facie right to recover in this action. It would show aprima facie right to recover in a suit by Mrs. Woodward alone. It showed no such right to recover by the two suing jointly.

The charges given at the instance of plaintiffs, and excepted to, and the charges asked by defendant and refused, are not so presented that we can consider them. In the other rulings on the admissibility of testimony, we find no error.

Reversed and remanded.