Dolin v. Gardner , 15 Ala. 758 ( 1849 )

CHILTON, J.

'The act of 1812, Clay’s Dig. 152, § 7, requires the witness who proves a deed for registration, to swear to the subscription of all the parties, setting out their names; that the witnesses subscribed in the presence of the maker of the deed, and in the presence of each other, and on the day and year named in the’deed; and in Phipps v. McGehee et al. 5 Por. Rep. 434, it is said, the substance of the form prescribed by the statute, must be pursued. See also Brock v. Headen, 13 Ala. Rep. 370; Shelton v. Armor et al. ib. 652, The certificate on the deed from the Walkers to Halford, does not conform to the statute, as it fails to show that the witnesses subscribed in the presence of each other, and in the presence of the maker. This may appear as useless formula; but it is a requisition of the statute law of the state, and the courts are bound to observe it, so long as the legislature chooses to continue it in force. The case of Bradford v. Dawson et al. 2 Ala. Rep. 203, does not militate against the view here taken. The deed from Owen Halford, to the defendant, was not certified, either as acknowledged, or proved. The. certificate refers merely to a covenant of warranty, indorsed upon it by third persons, not parties to the deed. Its admission, against the plaintiff’s objection, there being no proof of its execution, was clearly erroneous.

• The controversy in this case, was between a bona fide creditor, who had purchased the land under orders of sale, in satisfaction of his debt, and one who derived title through the debtor, by conveyance executed subsequent to the rendition of the judgments before the justice. In such case, it is the settled law, that the purchaser, in order to defeat the creditor, must show that he holds bona fide — that he is not a Volunteer, but that his conveyance is upon a valuable consideration. Thb bare recitals in his deed, in such case, are not sufficient. Bank v. Kinsey, 5 Ala. Rep. 12; Falkner v. Leath and Jones, at the last term. No such proof having been adduced by him in this case, the court erred in charging the jury, in effect, that his title was paramount to that of the plaintiff.

Note by the Reporter. For the form of the certificate of deeds of trust--see Hobson v. Kissam & Co., 8 Ala. 357.

Let the judgment be reversed, and remanded.