Sanford v. Empire Land Co., 103 So. 655

103 So. 655 | Ala. | 1925

Appellants claim title to the land in controversy as widow and heirs at law of Absalom Sanford, deceased. Appellee claims through a series of conveyances running back to and including a deed executed by Absalom and Mary Sanford. The main question for decision is whether the wife's acknowledgment was so defective by reason of omissions, which will be stated, as to render it inoperative as a conveyance.

It is asserted on the one hand, and apparently conceded on the other, that the conveyance was changed in some respects after its execution. But that fact does not affect the title or interest vested by the deed as written and executed. Sharpe v. Orme, 61 Ala. 263; Alabama State Land Co. v. Thompson, 104 Ala. 570,16 So. 440, 53 Am. St. Rep. 80; Gulf Red Cedar Co. v. O'Neal, 131 Ala. 117, 30 So. 466, 90 Am. St. Rep. 22, and cases cited. And the altered deed may be adduced in evidence to prove the conveyance and title in the grantee. Cases, supra. So then, in determining the validity and effect of the deed, we look to it and to the wife's acknowledgment as they were when executed, the originals having been certified to this court.

The wife's acknowledgment is in words and figures as follows:

"The State of Alabama, Walker county.

"I, Jas. L. Leonard, justice of the peace for the county and state aforesaid hereby certify that on the ___________ day of __________, 1883, came before me the within named __________, known to me (or made known to me) to be the wife of the within named Absalom Sanford, who being examined separate and apart from her husband in reference to her signature to the within conveyance, acknowledged that she signed the same of her own free will and accord, without fear, constraint, or threats on the part of her husband.

"Given under my hand this 21st day of Nov. 1883. J. L. Leonard, Justice of Peace."

The acknowledgment of the husband, owner of the property, requires no particular notice.

As to the wife's acknowledgment, it is the settled law that a literal compliance with statutory form is not exacted. It is sufficient if the statute has been complied with substantially, and, in determining this, the certificate of acknowledgment may be read in connection with the deed to which it refers. Frederick v. Wilcox, 119 Ala. 355, 24 So. 582, 72 Am. St. Rep. 925.

"Any portion of the deed may be examined to give effect and meaning to a certificate, which is apparently defective." Bradford v. Dawson, 2 Ala. 203; Gates v. Hester, 81 Ala. 357,1 So. 848; Penny v. Mortgage Co., 132 Ala. 363, 31 So. 96.

The same rule obtains in the case of the certificate of acknowledgment by a married woman joining with her husband in the alienation of the homestead. Such certificate is construed liberally in favor of the conveyance, though every essential requirement of the statute must be observed. Gates v. Hester, supra. One purpose — though not the only purpose — of the statute is to prevent one individual from personating another as grantor. Livingston v. Kettelle, 1 Gilman (Ill.) 116, 41 Am. Dec. 166; Penny v. Mortgage Co., supra.

Construing the deed, which shows its execution by the wife as one of the parties, with the acknowledgment, we think there can be no escape from the conclusion that the officer taking the acknowledgment does in substance certify that a person known to him — or made known to him — to be the wife of the grantor, viz., Mary Sanford, being examined separate and apart from her husband in reference to her signature to the deed, acknowledged, etc. Livingston v. Kettelle, supra, is very much in point.

The omission of the date in the body of the certificate does not vitiate the acknowledgment otherwise sufficient. Hobson v. Kissam, 8 Ala. 357.

It is the opinion of the court that the decree should be affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.