70 So. 1 | Ala. | 1916
Appellant, James F. 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.
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.
We have for consideration, then, the burden of proof on appellant, to establish the material allegations of the bill, which embraces proof of the existence of the debt and of the execution of the notes and mortgage securing the same.
The original notes and the mortgage are before us for inspection. The notes import a consideration, and purport to be signed by appellee. The mortgage contains a certificate of acknowledgment. It has been the ruling of this court that the body of an instrument may be looked to, in aid of the probate. — Bradford v. Dawson, 2 Ala. 207; Gates v. Hester, 81 Ala. 357; Frederick v. Wilcox, 119 Ala. 355, 358; Middlebrooks v. Stephens, 160 Ala. 282.
The statutory rule provided by the act (Acts, Sp. 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 eight 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 § 3967 of the Code of 1907, it prevented the notes 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 the defendant, by special plea stating the circumstances, may deny the legal effect or the validity of the bond on which he is sued; and that if the facts averred are in legal effect to say, that the instrument declared on was not the act of the defendant, is not the instrument signed by the defendant, it is a plea of non est factum, and that a verification thereof, to the best of affiant’s knowledge and belief, would present the issue sought to be raised.
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 The 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
In Mobile & Mon. Ry. Co. v. Gilmer, 85 Ala. 422, 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 accompanied with an affidavit of its truth” (Toulmin’s Digest, .Laws of Alabama, § 33, p. 454) ; and that the later statute (Code 1907, § 3967) requires no such affidavit of “its truth,” but only that it be “denied by plea verified by affidavit.” This change is found in § 2279 of the Code of 1852, and has been- continued in the subsequent codes as first made. In this we see not only a liberal construction of the statute by the decisions of our court, but a liberal legislative construction of the verification of such pleas that has continued to the present time.
The cases on this point, cited by appellee’s counsel, are inapt.
In Burgess v. Martin, 111 Ala. 656, 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 facts to be, etc.” Is this not authority for the instant case, where 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 Fert. Factory, 137 Ala. 166, it was held that where the verification 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, 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.”
“The admission contained in the mortgage is not sufficient evidence to overcome the positive denial of the answer: it is not equivalent to the testimony of two witnesses, or of one with corroborating circumstances. The complainants have, therefore, failed to establish the existence of the debt, as described in the mortgage and averred in the bill.”
The testimony of the respondent’s witnesses is full and direct. The defendant and her two daughters are interested, and their testimony should be regarded in the light of their interest. The testimony of the step-children cannot be said to be affected by the same degree of interest. Under the allegations of the bill, Carlos Veitch was likewise interested in the result of the suit, and his testimony should be tested in the light of that interest. He made application for the loan, furnished the abstract, paid for it himself, delivered the mortgage to the attorney for complainant, received the money on the mortgage, deposited it in the bank in his name. He explained that it was for the benefit of appellee and her family that he acted, yet his testimony also showed that he had received large sums of his sister’s (appellee’s) moneys from the proceeds of sales of her properties, or those of her husband’s estate, in Mississippi, and deposited it in his own name and expended it in due course as he saw fit; that he had no settlement therefor with appellee or her children, though requested to account, by them.
Mr. Veitch said, in the beginning of his testimony: “I explained to her that I was going to make this loan in order to build the house. To the best of my recollection I explained to
Touching the execution of the notes and mortgage, Veitch testified that the signature to the notes and mortgage shown him by counsel, was that of respondent, but that he was not present when these papers were executed. On his cross-examination he said, “I did not see Mrs. Palmer sign Exhibits A, B, and C,” the notes and mortgage in question. “I swore on direct examination that I knew her signature and that was her signature to the best of my knowledge.” “I did not see her sign it, therefore, I do not know it to be her signature.”
Complainant states that on approval of the title by his attorney he drew and delivered his check for the amount payable to Carlos Veitch. No power of attorney or letter of instruction from respondent to complainant, to pay the money to Veitch, is shown.
An inspection of the small credits endorsed on the notes, shows that all the interest was not paid at maturity, and that the principal was long past due. Complainant admits that no demand was made on respondent until four years after the maturity of the mortgage. Complainant was lending money, and Veitch was a wholesale grocer. From 1904 to 1909 they lived in the same city with Mrs. Palmer, yet no request for the payment of the matured loan was 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 did not sign the notes or mortgage, nor authorize anyone to do so for her; that the signature thereto was not hers; that she was not before the
As early as Little v. Beazley, 2 Ala. 703, 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, Admrs., 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 Evi., p. 515, and in 1 Greenl. on Evid., § 580, and also by our court in the recent cases of Washington v. State, 143 Ala. 62, and Griffin v. Working Women’s Assn., 151 Ala. 597.
In Griffin v. Work. Women’s Assn., supra, this court, from its former adjudications, declared as the well settled rule, that (1), “A comparison of handwriting may not be instituted between the writing that is in question and extraneous papers, although such extraneous papers may be shown to be genuine. A writing, although admitted to be genuine, when not otherwise relevant and- admissible in evidence, is not admissible for the sole purpose of instituting a comparison of handwriting, whether by the jury trying the case or for the expression of an opinion by one examined as an expert witness.”
(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
(3) That non-expert witnesses may not express an opinion as to genuineness of signature, unless such witnesses know the handwriting of party from having corresponded with him or seen him write.
The register erred in admitting, over the objection of the respondent, Exhibits “A-A,” and “B-3.” These documents not being properly before the court, a comparison may not be instituted between the signatures thereto and the signatures to 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 opinion that the alleged notes and mortgage were correctly cancelled as a cloud on complainant’s title to the lands described in the mortgage and in the original bill in this case.
The decree of the chancellor is affirmed.
Affirmed.