Carter v. Corley , 23 Ala. 612 ( 1853 )

PHELAN, J.

-Corley (use of Townes) sued Carter on the following note:

“ On the 1st of January, 1350, I promise to pay Elijah Corley, or bearer, the sum of one hundred and fifty dollars for value received, but if paid the first day of January next, one hundred and twenty-five dollars, it being for land, when I get a full title to the north-east quarter of section nine, in township twenty-two, of range twenty-one, this, 30th day of March, 1849. (Signed) David Carter.”

The defence set up against the payment of this note, that the wife’s dower was not property relinquished to the land for which it was given when the deed was tendered, cannot be supported.Thc deed purports on its lace to have been executed by the wife, together with her husband, in the presence of two witnesses, and no question was made respecting the genuineness of the signatures either of the grantors or the witnesses. This, by the act of 1839, (Clay’s Digest 174 § 10,) makes the relinquishment valid and the bar of dower complete; for the statue says, uany feme covert.” That statute was evidently passed to facilitate relinquishment of dower to lands in this State, and embraces as well femes covert residing out of this State as those residing in it. It intended that a man living in Alabama, who wished to purchase a tract of Alabama land, of a married man residing out of the limits of the State, might (if he saw proper) carry his witnesses with him, who might attest the deed in the foreign State, and prove its execution before tho tribunals of Alabama, either for record or any other purpose.

The probate of the deed which was made before Ware, the Alabama justice of the peace, and which was endorsed on the deed at the time it was tendered, was too defective to amount to such a certificate of probate as the law requires ; but the grantor was under no obligation to furnish a probate. If the deed vías signed by himself and wife, and attested by two witnesses, that was sufficient on his part; that made in law a valid deed from husband and wife. If the grantee wanted it put on record, it was his business to have that done, by calling the witnesses and making the proof for his own benefit.

Although the suit is brought for tho use of Win. Townes, who is one of the attesting witnesses to the deed which Corley and his wife signed, it does not appear that he had any interest at the time he attested the deed; and if not, an interest subsequently acquired in tho note given for the purchase money, could not affect the validity of his previous attestation. The grantee in the deed had an interest in that act, and in his testimony to it, if required afterwards, which he had no power to destroy oven if he desired to do so. — 3 Phillip’s Ev. 1266 et seq.

We have heretofore decided, that in a note made after this form, whore a greater sum may bo discharged by the payment of a less sum at an earlier day, the greater sum will not be considered in the nature of a penalty, but the debt actually due, and is recoverable if the loss sum be not paid according to the terms of the note.—Jordan v. Lewis, 2 Stew. 426.

There was no error in the charge given, or in the refusal to charge as requested, and the judgment below is affirmed.