Jones v. Parks , 22 Ala. 446 ( 1853 )

GOLDTH WAITE, J.

In the case of Dubose v. Young, 10 Ala. Rep. 266, it was Held, that when the certificate of the proper officer, that a deed was duly recorded, misdescribes the name of the grantor by substituting another name,'the certificate is of no value as evidence, although direct reference be made therein to the deed, by the use of the term, “ the foregoing deed.” In the present case, the deed was executed by McKewin, and the certificate described it as having been made by McKinnie. Under the influence, therefore, of the decision we have just referred to, the certificate did not prove a compliance with the registration acts, by showing that the deed had been deposited in the proper office, within the time for registration. McGregor v. Hall, 3 S. & P. 397; Dubose v. Young, supra. Neither does the evidence of the witness, Cotton, which was offered for that purpose, show at what time the deed was deposited for record. This being the case, the record was inadmissible. Under the influence of the decision in Dubose v. Young, it could not properly have been regarded as the record of the deed which had been proved.

The bill of exceptions shows, that in the contest which arose in relation to the record of the deed, the clerk of the court in which it should have been recorded, was offered as a witness, and testified, that he had received the deed, and handed it to his deputy to register; that he was in the habit of examining his work, and that he had no doubt that the record exhibited was the record of the deed of trust which was before the court. The portion of this testimony which was matter of opinion was objected to, and the overruling of this objection is made the basis of one of the assignments of error. We are clear that this evidence was illegal, and should not have been received; and although its admission could not have availed the plaintiff in error, if the record was admissible without it, yet, as we have already seen, such was not the case, and as the record was admitted apparently upon this testimony, we cannot say that it worked no injury to the party objecting. Prom another portion of the record it appears, that evidence was offered to show that the defendant was a bona fide purchaser; and the fact as to whether the deed of trust was recorded, was an important question, so far as he was concerned. Our conclusion is, that the court erred in tbe admission of tbis evidence, and tbat tbe error may bave been prejudicial to tbe defendant. There was, however, no error in tbe refusal by the court below to exclude the notes, on tbe ground of a want of consideration. Tbe evidence upon this point tended to establish the fact, tbat in April, 1845, before tbe execution of tbe deed of trust, Mc-Kewin, tbe grantor, received from one Donnegan tbe property conveyed, upon tbe consideration tbat be should pay to Curry & Groce, tbe beneficiaries in tbe deed, about tbe sum of seventy-five dollars, which Donnegan admitted be was indebted to them. It is unnecessary to refer to authority to show tbat tbis furnished a sufficient consideration for tbe execution of tbe first note made by McKewin to Curry & Groce. Evidence having been offered tending to establish tbe indebtedness of McKewin, to about tbe amount for which tbe note secured by tbe deed of trust was given, it then became a question of fact for tbe jury, to decide whether such indebtedness constituted tbe consideration of tbe last mentioned note. Tbe possession of tbe first note by the plaintiffs below, although it may bave been a circumstance tending to show tbat tbe second note was not based upon tbe same consideration, was not conclusive, and was properly submitted to tbe jury for their determination.

In relation to tbe several charges which were requested on tbe part of tbe plaintiff in error, we are of opinion that they were properly refused. Tbe evidence, as disclosed by tbe record, tended to show that tbe defendant was in tbe possession of tbe harness, as well as tbe wagon, before suit brought. Conceding, for tbe purposes of tbe argument, tbat a full de-fence may bave been made out against tbe right of tbe plaintiff to recover tbe wagon, does it follow tbat the harness could not bave been recovered ? Tbe several charges, if given in tbe terms in which they were asked, would bave been equivalent to instructing tbe jury, tbat tbe plaintiff could recover nothing, if upon tbe law be was not entitled to recover tbe wagon.

For tbe error we bave referred to in tbe admission of tbe record, tbe judgment is reversed, and tbe cause remanded.