Penton v. Williams

43 So. 211 | Ala. | 1907

SIMPSON, J.

This action was commenced in the justice of the peace court on a complaint describing a sealed instrument with waiver of exemptions. In the circuit court, a count was added, omitting the waiver of exemption clause, and stating that the defendant executed the instrument by having his name signed thereto and making his mark. Defendant demurred to count No. 2 of the complaint as amended.

The first cause of demurrer, as it appears on the record Is unintelligible, to wit: That it is ^an attempt to prove a count declaring on a waiver instrument without a wmiver.” The second cause is that the count “show7s on its face the instrument sued on was not legally executed, in this: It shows that the instrument was signed by mark only by defendant, and was not signed by any one as a. witness who wrote his name.” There was error in sustaining this demurrer, because, in the first place, the allegations of the count do not necessarily show7 that there vms no witness to the instrument, and, in the second place, even if there were no witnesses to it, that wmuld not show that the instrument was illegally executed. Section 1 of the Code of 1896 does not change the common law7, so as to invalidate instruments evidencing contracts not required by statute to be in writing, though signed by mark without a witness.—Ala. Warehouse Co. v. Lewis, 56 Ala. 514; Bickley v. Keenan & Co.., 60 Ala. 293; Bates v. Harte, 124 Ala. 428, 430, 26 South. 898, 82 Am. St. Rep. 186.

Even though the clause waiving the right of homestead exemption is void for lack of execution of the agreement according to statute, the contract still stands as . a promise to pav.—Brown v. Bamberger, Bloom & Co., 110 Ala. 342, 20 South. 114.

The court erred, also, in refusing to allow the instrument sued on to be introduced in evidence. Tn addition to the authorities above cited as to the validity of the contract, the execution of the instrument not having been put in issue by a plea of non est factum, it “must be regarded as the act of the defendant.”—Wimberly v. Dallas, 52 Ala. 196; Bickley v. Keenan & Co., supra...The judgment of the court is reversed, and the cause remanded.

Tyson, C. J., and Haralson and Denson, JJ., concur.