Russell v. Holman

| Ala. | Jun 18, 1908

HARALSON, J.

The deed of Amos Russell and wife to J. C. Holman, was signed by them by their marks, and was not attested by two’ witnesses, under section 998 of the Code of 1896; but a justice of the peace took the separate acknowledgement of each of the grantors, as prescribed by sections 996 and 997 of the Code of 1896.

Section 984 of the Code of 1896 provides that “the acknowledgement, hereinafter provided for, operates as a compliance with the requisitions of the second preceding section” (Code 1896, § 982) in respect to the execution of a conveyance by parties unable to write, and who sign by mark.

The acknowledgements of the grantors appear to have been in exact compliance 'with those tAvo sections (982 and 984), and there was no error, as for the objections raised, to the introduction of said deed.

Nor, for the same reasons, was there error in alloAving the introduction of the deed by plaintiff, in proof of his chain of title (as was the introduction of the said deed from Amos Russell and wife to J. C. Holman), from Sam Russell and Avife, Cynthia, to J. C. Holman.

The deed from Amos Russell and wife, Luny, to Sam Russell, was also properly alloAved in evidence. The certificate of acknowledgement of the justice of the peace was, as to each of said grantors, separate, hut one form of acknoAAdedgement was employed, as to both grantors, separately, first to Amos, and then as to Luny, the wife. The acknowledgement as to the latter shows that she was examined separate and apart from her husband as provided by section 2034 of the Code of 1896, to make it good as to alienation' of a homestead by a married woman. So that, the acknowledgement Avas good whether the land constituted the husband’s homestead or not. It was as effectual for any purpose, as if two separate forms of acknowledgement had been employed. Having complied with the statute, and the wife having been examined separate and apart from the husband, as certified by the justice, having used one form, instead of íavo, the effect was the same. The officer can. certify both acknoAvledgements in one and the same certificate, provided the certificate contains all the essential parts of both certificates required by law. — Hood v. Powell, 73 Ala. 171" court="Ala." date_filed="1882-12-15" href="https://app.midpage.ai/document/hood-v-powell-6511595?utm_source=webapp" opinion_id="6511595">73 Ala. 171, 173; Loyd v. Oates, 143 Ala. 231" court="Ala." date_filed="1904-11-15" href="https://app.midpage.ai/document/loyd-v-oates-7361492?utm_source=webapp" opinion_id="7361492">143 Ala. 231, 38 South. 1022, 111 Am. St. Rep. 39.

Section 2034 of the Code of 1896 is the only provision with regard to Iioav the wife shall sign the conveyance of the homestead; and that section makes no reference to how the signature shall be made and does not require any attestation, but makes the certificate of the officer the evidence of the signature’s having been made.

Section 982 applies only to the grantor, and not to the Avife, and consequently section 984 has no bearing on this case.

Plaintiff asked the witness, Holman, “did J. C. Holman rent the lands embraced in the homestead entry to any one, at any time?” This Avas a proper question, calling for evidence of the exercise' of ownership over the land by J. C. Holman, to whom Amos Russell, who entered the land, had deeded it in 1895. Plaintiff acquired title through Holman and, as contended by counsel, it was permissible for him to prove that J. C. Holman had rented the land out, while he held a deed to it, thus exercising acts of ownership, over it, to the exclusion of defendants.

Parol evidence is admissible, as we have held, to prove the falsity of a certificate of acknowledgement of a conveyance of land, by showing want of juisdiction of the officer taking the acknowledgement — which was attempted and allowed in this case.

The certificate of the justice, J. W. Garrett, shown to be dead, to the deed of Amos and Luny Russell, to Sam Russell, if true, shows that he had jurisdiction of the parties, grantors, who appeared before him, and also of the instrument to be acknowledged, which was also before him. But the defendant, Amos Russell, was allowed to testify without objection, that neither he nor his wife, Luny, had ever appeared before said justice, and had never signed the deed. On this state of the evidence, the court committed no* error in refusing to exclude said deed from the consideration of the jury. The certificate was entitled to be considered by the jury, as evidence of the facts recited therein.

The court charged the jury: “That they might consider the certificate of J. W. Garrett, justice of the peace, showing the acknowledgements of Amos Russell and his wife, Luny Russell, along with all of the testimony in the case, and as a part of thé testimony, in detemining the truth of the question of whether Amos Russell and wife, Luny Russell, had executed the deed introduced in evidence, which purported to have been made by them to Sam Bussell.” In this there was no error, nor was there error in refusing to exclude said deed. ,

During the trial, witness Law, testifying in plaintiff’s behalf, stated that Amos Bussell, Jr., cultivated the lands during 1901 and paid rent for that year. It was therefore competetnt for plaintiff to ask this witness the following question: “While Amos was cultivating the lands on the east side of the road, did he tell you from whom he ivas renting?”

The subsequent correction by Law of this testimony, showing that it was Amos Bussell’s brother who made the statement to him, and not Amos — not being followed up by a proper objection — cannot avail to put the court in error.

The certificate of the register of the land office was not improperly admitted in evidence. As contended by counsel for plaintiff, it was introduced for the purpose of showing that Amos Bussell had made final proof and was entitled to his patent, as a part of the chain of title, and the fact to be thereby proved was the final proof of entry; which certificate, under section 1816 of the Code of 1896 was admissible. — Case v. Edgeworth, 87 Ala. 204, 5 South. 783.

We have thus examined the assignments of error, on which any reason for the reversal of the judgment below could be predicated, and finding no reversible error, the judgment is affirmed.

Affirmed.

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