70 So. 1 | Ala. | 1916
Appellant, James P. Sulzby, filed his bill to foreclose a mortgage. Appellee, Mary Palmer, by answer and cross-bill, under oath, denied 'the execution of the notes, and of the mortgage securing the same, and prayed the cancellation of the same as a cloud on her title.
This provision is extended to proceedings in equity. —Bonner v. Young, supra; Dreyspring v. Loeb, supra; Noble v. Gilliam, supra.
In the case before us, the eighth paragraph of the appellee’s answer and cross-bill is verified by the affidavit of respondent in the court below, and denies the execution of the notes and of the mortgage, foreclosure of which is sought.
It has been the ruling of this court that the body of the instrument may be looked to in aid of the probate. —Bradford v. Dawson, 2 Ala. 207; Gates v. Hester, 81 Ala. 357, 1 South. 848; Frederick v. Wilcox, 119 Ala. 355, 358, 24 South. 582, 72 Am. St. Rep. 925; Stephens v. Middlebrooks, 100 Ala. 283, 49 South. 321.
The statutory rule provided by the act (Acts Spec. Sess. 1909, p. 14) is that: “Conveyances of property, real or personal, or any interest therein, whether absolute or on condition, which are acknowledged or proved according to law, and recorded, may be received .in evidence in any court without further proof; and if it appears to the court that the original conveyance has been lost or destroyed, or that the party offering a transcript, had not the custody or control thereof, the court must receive the transcript, duly certified in the place of the original, unless the reputed maker is in bona fide possession of the property and makes and files an affidavit that the said conveyance is a forgery.”
The statute (Code, § 5332) requiring the verification of all pleas denying the execution by the defendant of an instrument in writing, the foundation of the suit, is as follows: “All pleas in abatement, unless it be a matter of record, pleas which deny the execution by the defendant, his agent, or attorney, or partner, of any instrument in writing, the foundation of the suit, or the assignment of the same, or which set forth any instrument in writing whether under seal or not, which is alleged to be lost or destroyed-, and pleas since the last continuance, must be verified by affidavit.”
There can be no doubt that the matter alleged in paragraph 8 of respondent’s cross-bill, added by way of amendment, amounted, in legal effect, to a plea of non est factum; and, if verified by affidavit as provided in section 3967 of the Code of 1907, it prevented the notes and mortgage from being received in evidence without proof of execution by complainant.
What is a sufficient verification was declared in Berry et al. v. Ferguson et al., 58 Ala. 314, where the court stated that the plea must be direct and positive, though the affidavit of its truth may be made on information and belief; that the qualification must not be in the plea, but may be in the affidavit. Again, in McCoy v. Harrell, 40 Ala. 232, it was held that the recital of the plea that the defendant “makes oath that this plea is true,” the record showing that the plea was sworn to before the clerk, is a sufficient verification, although it was signed by his attorney and not by the defendant. In Martin v. Dortch, 1 Stew. 479, 481, it was said that
In Winston v. Moffet, 9 Port. 518, Mr. Justice Ormond dismisses this question by saying: “In all cases in which a plea is required to' be sworn to, it may be done by the person swearing to the best of his knowledge and belief.”
To the same effect was the holding in Trustees v. Brown, 3 Ala. 326.
In Tindal, Adm’x, v. Bright, Minor, 105, the Chief Justice said: “The statute requires that the plea shall be accompanied with an affidavit of its truth, but does not prescribe the form and manner in which the matter shall be set forth, or that the affidavit shall be general or special. As affected by the statute it certainly cannot be important whether the party swears generally that his plea is true, or swears to facts from which its truth must necessarily be inferred. * * * It is certainly more safe, both as to' the conscience of the defendant and the rights of the plaintiff, to state the facts specially.”
In Mobile & Montgomery Railway Co. v. Gilmer, 85 Ala. 422, 5 South. 138, the court gave the statute a liberal construction.
It is significant that the early decisions referred to were under a statute providing “that no plea of non est factum shall be admitted to be pleaded, but when
The cases on this point, cited by appellee’s counsel, are inapt. In Burgess v. Martin, 111 Ala. 656, 20 South. 506, where the plaintiff was praying for discovery and for the appointment of a receiver, the court gave approval to the expression, “has been informed and believes and upon such information and belief charges the fact to be,” etc. Is this not authority for the instant case, when the amendment charges specifically and positively what the facts are, and that affiant “makes oath that this is true?” So, in the case of Smothers v. Meridian Fertilizer Factory, 137 Ala. 166, 33 South. 898, it was held that where the verifica-tion to a bill in chancery is made by counsel for complainant, and the facts therein are alleged upon “his best information and belief,” the same is insufficient, in that it does not amount to a charge that affiant has been informed and believes, and upon such information and belief charges, the facts to be true. In Globe Iron Roofing, etc., Co. v. Thacher, 87 Ala. 458, 6 South. 366, the statute there in question required that the claim of an original contractor or materialman must be verified “by the oath of the claimant, or some other person having knowledge of the facts.”- In each of the cases
His testimony was to- the effect that he was “going to make this loan,” but he did not positively inform his sister that he had made the loan, or when the loan was completed. He did not take the check therefor in her name, did not inform her that complainant had paid the money to him, nor that he had deposited it to his credit at the bank and was using it as he saw fit. When
Complainant states that on approval of the title by his attorney he drew and delivered his check for the amount payable to Carlos Yeitch. No- power of attorney or letter of instruction from respondent to complainant, to pay the money to Yeitch, is shown.
An inspection of the small credits indorsed on the notes shows that all the interest was not paid at maturity, and that the principal Avas long past due. Complainant admits that no demand was made on respondent until four years after maturity of the mortgage. Complainant was lending money, and Yeitch was a wholesale grocer. Prom 1904 to 1909 they lived in the same city Avith Mrs. Palmer, yet no- request for payment of the matured loan Avas made on respondent. This was an unusual indulgence,- and one that the evidence does not sufficiently explain, if Mrs. Palmer was looked to for payment. The respondent swears positively that she
As early as Little v. Beazley, 2 Ala. 703, 36 Am. Dec. 431, and State v. Givens, 5 Ala. 754, and in the cases of Bishop v. State, 30 Ala. 41, Kirksey v. Kirksey, 41 Ala. 626, Williams v. State, 61 Ala. 33, 39, and Moon, Adm’rs, v. Crowder, 72 Ala. 79, it was held that the comparison of a given handwriting with that of different submitted writings having no connection with the matter at issue, is not permissible. This was the rule declared in 2 Starkie on Evidence, p. 515, and by our court in the recent cases of Washington v. State, 143 Ala. 62, 39 South. 388, and Griffin v. Working Women’s Association, 151 Ala. 597, 44 South. 605. In Griffin v. Working Women’s Association, supra, this court from its former adjudications, declared as the well-settled rule,
(2) “When the forgery of a paper is in issue, and another paper admitted or proven to be genuine is properly in the case and before the court, a comparison may be instituted between the signature of the genuine and the signature of the disputed one. The comparison may be made by the jury trying the case, for the purpose of determining the question of forgery vel non of the disputed paper, or an expert witness may also- make a comparison in such case of the two signatures and, after such comparison, express his opinion as to the genuineness of the paper in dispute.”
(3) That nonexpert witnesses may not express an opinion as to' genuineness of signature, unless such witnesses know the handwriting of the party from having corresponded with him or seen him write.
The register erred in admitting, over the objection of the respondent, Exhibits A3 and B3. These documents not being properly before the court, a comparison may not be instituted between the signature thereto and the signatures of Exhibits A. B. and C, for the purpose of 'identification of the signatures to the latter.
On consideration of the evidence, with a due regard for the burden of proof, and without presumption in favor of the finding of the chancellor, we are of the opin
The decree of the chancellor is affirmed.
Affirmed.