Russell v. Walker

73 Ala. 315 | Ala. | 1882

BRIOKELL, O. J.

— The present action, for the recovery of a chattel in specie, and- damages for its detention,- can not be supported, unless, at the time it was commenced, the plaintiff had a general or special property in the chattel, and the right of immediate possession. The plaintiff, not having had actual possession, must prove a legal title. — Parsons v. Boyd, 20 Ala. 112; Reese v. Harris, 27 Ala. 301. Assuming that at the execution of the mortgage, the title resided in the mortgagor, the assignment of the mortgage subsequently, upon payment of the mortgage debt, passed title to the plaintiff, and would authorize him to maintain the action in his own name. — Graham v. Newman, 21 Ala. 197. The execution of the mortgage not being admitted by the pleadings,. the burden of proving it rested on the plaintiff. Appearing to be attested by subscribing witnesses, the execution could not be proved without calling them, or one of them, if living, competent, and within reach of the process of the court. — Bennet v. Robinson, 3 Stew. & Port. 227. This rule has been said to be “as fixed, formal and universal, as any that can be stated in a court of justice”' (King v. Harringworth, 1 Maule & Selwyn, 351); and, “though originally framed in regard to deeds, is now' extended to every species of writing, attested by a witness.” — 1 ’ Green. Ev. § 569.

The subscribing witnesses were not called, nor was any reason shown for not producing them. The effort was to prove execution by mortgagor and mortgagee. But so long as the evidence of the subscribing witnesses could be produced, it is the best, the primary, and only admissible evidence of execution. Bennet v. Robinson, supra. The exceptions to the rule requiring execution to be proved by them are well defined, and the admissions or declarations of the parties to the instrument, (not made in open court, or in writing, for the purposes of a trial, when they are the parties litigant) do not fall within them. There are several reasons given for the rule. It is said, there may be facts attending the execution, not known to, or within the recollection of each party to the instrument; and that when there is a subscribing witness, the parties agree that he is the proper medium of proving execution. In King v. Harringworth, supra, Lord Ellenborough said: “Inasmuch as they are the plighted witnesses, the knowledge they have upon the subject is essential, and if it can be procured, must be forthcoming.”.

The circuit court did not err in the several rulings to which exceptions were taken, and its judgment must be affirmed.