Doe ex dem. Hughes v. Wilkinson , 35 Ala. 453 ( 1860 )

R. W. WALKER, J.

The appellee (who was the defendant in the court below) offered in evidence a paper consisting of a single sheet, upon which are found — 1st, a deed, dated 16th May, 1839, executed by McBryde and wife, conveying the land in controversy to Homer Black-man; 2d, a certificate by a justice of the peace, of the acknowledgment, on the 16th and 17th May, 1839, by McBryde and wife, of “the above instrument,”as “their own free act and deed,” which certificate does not show a private examination of the feme covert; 3d, a relinquishment of dower by Mrs. McBryde, dated 17th May, 1839, written upon the back of the above mentioned deed, and relinquishing to “Homer Blackman, the grantee within named,” her dower “in the lands and premises within described; and 4th, a certificate by the same justice of the peace, written beneath the relinquishment, and dated 17th May, 1839, to the effect that he had on that day examined Mrs. McBryde, privately and apart from her husband, and that on such private examination she “ acknowledged that she signed, sealed, and delivered the foregoinginstrument,as her voluntary act and deed, freely, without any fear, threats, or compulsion of her husband.”

The fee in the land was iu Mrs. McBryde, and if the words “the foregoing instrument,” as used in the last mentioned certificate, refer to the deed, and not to the relinquishment of dower, the estate of the wife in the land passed by the deed and certificate. But, if those words refer to the relinquishment of dower, and not to the deed, the estate of the wife in the land did not pass. Doe ex dem. Hughes v. Wilkinson, 21 Ala. 296 ; McBryde v. Wilkinson, 29 Ala. 662. The defendant insisted in the court below, that the certificate which follows the relinquishment was really applicable to the deed; and the court, in effect, permitted him to show by parol evidence, aud as an independent fact, that the deed of McBryde and wife, and not the relinquishment of dower, was the instrument intended to be designated by the words, “ the foregoing instrument,” as used in that certificate. 'The admissibility of this evidence is the main question which we are to decide.

The general rule, in reference to the construction of written instruments, is, that the inquiry is restricted to the meaning of the terms used, and to the intent which the language of the instrument expresses. It is true that, for the purpose of enabling the court to arrive at.the intention expressed in the writing, aud to make a correct application of the words of the instrument to the subject-matter thereof and the objects proposed to be described, all the surrounding" facts and circumstances maybe proved. In other words, the court may, by admitting in evidence the extrinsic circumstances under which the •writing was made, place itself in the situation of the party who made it, and so judge of the meaning of the words, and of the correct application of the language to the things described. Such evidence is received, not for the purpose of importing into the writing an intention not expressed therein, but simply with the view of elucidating the meaning of the words employed ; and in its admission, the line which1 separates evidence which aids the interpretation of what is in the instrument, from direct evidence of intention independent of the instrument, must be kept steadily in view, — the duty of the court being to declare the meaning of what is written in the instrument, not of what was intended to be written. — 2 Phill. Ev. (ed. of 1849,) 277, 281, 293-4; 4 Phill. Ev. 528, 529, 531, 551, 571, 495, 534; 1 Green 1. Ev. § § 277, 288; Rosborough v. Hemphill, 5 Rich. Eq. 105-6-7; Tucker v. Seaman’s Aid Society, 7 Metc. 188, (205 ;) Wigram, 59,138 ; 1 Spence’s Eq. Jur. 555_6-7.

To the general rule which excludes any direct evidence of what the party intended, except such as may be furnished by the writing itself when construed in the light of the circumstances surrounding the writer when it was executed, the authorities have established two exceptions, the recognition of which has been forced upon the courts by the necessity of the case. The first of these is where the object is to rebut an equity, and prevails alone in courts of equity. — 2 Taylor Ev. § § 854, 861, and cases cited. The second exception alluded to is where the instrument refers to some external object, and it is made to appear that there are two or more objects, to each of which the language employed is applicable with legal certainty. In such cases, extrinsic evidence is admissible, to show to which one of these several objects the party intended to refer. — 4 Phill. Ev. (ed. of 1850,) 534, 536, 539, 540-1, 551; Wigram Extr. Ev. 14, (7th proposition,) 118, 115, 147-9, 169 ; 2 Phill. Ev. (ed. 1849,) 300, 303, 322, 327-8; 1 Greenl. Ev. § § 288, 290; 2 Taylor Ev. § § 854, 856-61, 867; Doe v. Hiscocks, 5 M. & W. 362, (367-8,) and note on p. 372; Doe ex d. Gord v. Needs, 2 M. & W. 129; Miller v. Travers, 8 Bing. 244; Osborne v. Wise, 7 C. & P. 761;. Tucker v. Seaman’s Aid Society, 7 Metc. 188, (205-6-7-8;) 1 Spence’s Eq. Jur. 560-1. As where the testator gives the manor of Dale to his nephew, John Smith ; and in applying the will to the property, it appears that the testator had two manors of Dale, or two nephews named John Smith; and no inference can be drawn from other parts of the will, or the circumstances and relations of the testator, to indicate which was meant: in such a case, parol evidence is admissihle, to show which manor was inteudedto pass, and which nephew was intended to take. Doe v. Hiscocks, 5 M. & W. 368 ; Miller v. Travers, 8 Bing. 244; Tucker v. Seaman’s Aid Society, 7 Mete. 206 ; and authorities supra. So, where the head of Swan Creek is called for in a deed, and two creeks are set up by the respective disputants, parol evidence is allowed, to show which is the creek intended. In like manner, where a tree is called for, and there are two trees answering the description; or where a way is granted, and there are two ways to which the language is equally applicable, the courts will receive extrinsic evidence of the intention itself., in order to make certain the object which the parties actually had in view. — 4 Phill. Ev. (ed. 1850,) 496, 539; Hammond v. Ridgely, 5 Har. & J. 215; Pritchard v. Hicks, 1 Paige, 270 ; Doe v. Morgan, 1 Cromp. & Mees. 235; Waterman v. Johnson, 13 Pick. 261; Coit v. Starkweather, 8 Conn. 289.

In this class of cases, the inquiry is, what did the party intend to express; and any evidence which, upon general principles, is relevant and material to that inquiry, will be admitted. Declarations of the parties, made at the time of the execution of the instrument, or any other facts indicating an intention to refer to any one of the several objects, which appear to be equally within the words employed, are received, to settle the doubt as to-which was the object actually intended. — Wigram Extr. Ev. 118 ; 4 Phill. Ev. 540, 551; Doe v. Hiscocks, 5 M. & W. 369 ; Doe v. Needs, 2 M. & W. 129; 2 Taylor Ev. § § 856-8.

The principle on which, in this class of cases, ihe courts receive direct evidence of the intention of the party in using particular words, is thus stated by Parke, B., in Doe d. Good v. Needs, 2 M. & W. 129: “ The characteristic of all these cases is, that the words of the will do describe the object or subject intended; and the evidence of the declarations of the testator has not the effect of varying the instrument in any way whatever : it only enables the court to reject one of the subjects or objects, to which the description of the will applies, and to determine which of the two the devisor understood to be signified by the description used in the will.” — See, also, Wigram Extr. Ev. 115; Tucker v. Seaman’s Society, 7 Metc. 208 ; Doe v. Hiscocks, 5 M. & W. 369.

Such eases meet exactly Lord Bacon’s definition of a latent ambiguity, which, he says, “is that which seemeth certain and without ambiguity for anything that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth ambiguity.” It is the nature of a latent ambiguity never to appear on the face of the writing, but to lie hidden in the person or thing or subject 'whereof the writing speaks. — Hand v. Hoffman, 3 Halsted, 78. And as it is raised by extrinsic evidence, it may fairly be dissolved by the same means. 4 Phill. Ev. 526.

In all other cases, therefore, except where the object is to rebut an equity, or where the language of the instrument is indifferently applicable to two extraneous subject-matters, it is the duty of the court to reject direct evidence showing how the maker intended the words he has used to be understood. — 4 Phill. Ev. (ed. 1850,) 522, 534, 551, 568; 5 M. & W. 369 ; Carrington v. Golden, 13 Gratt. 587, (593-4, 610;) Rosborough v. Hemphill, 5 Rich. Eq. 95, (105-6;) Schoppert v. Gillam, 6 Rich. Eq. 85; 1 Spence’s Eq. Jur. 660-1; Wigram, 9, 10, 76, 104; 2 Taylor Ev. § 854, and authorities supra.

Hence, when the queston to be determined is as to the meaning of words which are not used as the symbols of something extraneous to the instrument, but are applied to matters in the context; and the court cannot, from the writing itself, as explained by the circumstances under which it was executed, ascertain the precise application which was intended, parol evidence is inadmissible to ascertain and establish such intention as an independent fact, and the instrument will be so far void tor uncertainty. Wigram, 14, (6th prop.) 74-6, 65, 179; Doe v. Hiscocks, 5 M. & W. 369 ; 1 Greenl. Ev. § 300 ; Fish v. Hubbard, 21 Wend. 651, (659 ;) 4 Phill. Ev. 528, 571.

It follows from what has been said, that the propriety of permitting the appellee to show, by the testimony of the justice of the peace who certified the acknowledgment, that the words of-the certificate were intended to designate the deed and not the relinquishment of dower, depends upon the inquiry, whether the reference in the certificate to “ the foregoing instrument,” is a reference to some extraneous object; and if so, whether it is applicable with like legal certainty to each of the instruments above named.

The two deeds, and the acknowledgment, were all written on the same sheet of paper. They were all executed about the sapie time — all related to the same subject-matter — and the entire paper was introduced on the trial by the appellee as one piece of documentary evidence. The certificate of acknowledgment is simply a part of this paper — a mere dependent part, which, of itself, means nothing, and becomes sensible only by its connection with what precedes it on the same sheet. There cannot be a doubt, we think, that for the purpose of construing the certificate in question, the various writings which precede it on the same paper, and with which it is expressly as, well as tacitly connected, are to be read with the certificate, as if they all together constituted one writing. 4 Phill. Ev. 517-18; Cuthbert v. Wolfe, 19 Ala. 373; Rives v. Toulmin, 19 Ala. 288. Writings thus connected can no more be subjected to the influence of parol evidence, than if they in fact constituted an entire instrument. — 4 Phill. Ev. 519; Hall v. Adams, 1 Hill, 601. Consequently, a reference in the certificate, to one of the preceding writings on the same sheet, is not a reference to some extrinsic object, i. e., to something not to be found in any part of the paper, (21 Wend. 659,) but must be considered as relating to an antecedent part of the same context.

The very terms of the certificate show, that the object referred to is connected with it on the same piece of paper, and no more extrinsic than the first of several codicils of a will, all written on one sheet, would be extrinsic to those which followed it. The words, “the foregoing instrument,” must be viewed, therefore, simply as words of relation, referring to antecedent matter in the context; and the case is thus brought directly within the rule, that parol evidence is inadmissible to prove to which of two antecedents a given relative was intended to refer. 4 Phill. Ev. (ed. 1850,) 529. Thus, where the testator made dispositions in his will to several persons, among others to his wife and niece, who were the only women mentioned in the will, and then devised “ to her” a particular estate for life, the question was whether parol evidence was admissible to show which of the two was intended. The lord chancellor refused to receive it, on the ground that it woqld tend to put it in the power of witnesses to make wills for testators. — Castleton v. Turner, 3 Atk. 259 ; 1 Jarman on Wills, 361; see Abercrombie v. Abercrombie, 27 Ala. 495. So, declarations of the testator, and other evidence aliunde, are inadmissible, to prove what was intended by an unmeaning or senseless word ; or for the purpose of changing, to any extent, a technical rule of verbal construction; or of reconciling conflicting clauses in a will; or of abridging or increasing the effect of words used; or of proving that a word was used in a popular or secondary sense, when the context shows that it was employed in its primary or technical sense. — 4 Phill. Ev. 529; Wigram Extr. Ev. 70, 139; Lane v. Earl of Stanhope, 6 Term R. 352 ; Field v. Eaton, 1 Lev. Eq. 283; 1 Spence’s Eq. Jur. 566-7-9 ; 2 Phill. Ev. 334-5 ; Doe v. Westlake, 4 B. & Ad. 57; Barlow v. Lambert, 28 Ala. 704. All these are but illustrations of the general principle, that parol evidence is not admissible,either to change the intention expressed in the writing, or to supply the defect which results from, the use of language which is essentially so loose and imperfect as not to express any definite intent. “ To define what is indefinite, is to make a material addition to the writing. ” Wigram, 118; 4 Phill. Ev. 528.

It being seen that, for the purpose of construing the certificate, all the writings on the same paper with it are to be viewed as oné entire context, it follows that, if upon an examination of all of them, aided by evidence of the circumstances under which the certificate was made, it cannot be told to which of the two deeds it was intended to refer, then this would be a case of patent ambiguity, of that class which is not susceptible of explanation by parol evidence. — Authorities before cited; also, Wigram, 184-5; 21 Wend. 659; Abercrombie v. Abercrombie, 27 Ala. 495; Johnson v. Johnson, 32 Ala. 637.

Even if we were to concede, that the reference in the certificate to “ the foregoing instrument,” is a reference to an extrinsic object, and not to antecedent matter forming part of the same context, the decision of this court when the case was here before would be conclusive against the admissibility of the evidence under consideration. The argument for the appellee is, that the two deeds are objects extrinsic of the certificate, and that the words of the latter being applicable with like legal certainty to both deeds, parol evidence is admissible to show to which one of the two the parties actually intended to refer. In other words, the existence of the two deeds on the same paper with the certificate shows a latent ambiguity, which may be explained by direct evidence of the intention of the parties. But the former decision of this court was made upon the very evidence which, it is now insisted, shows a latent ambiguity; and it was then held, that the words of this certificate were applicable, not to the deed, but to the relinquishment. The court, therefore, in effect decided, that the existence of the two deeds on the same paper with the certificate, which is the only evidence relied on as showing a latent ambiguity in the certificate, did not in fact have'any such effect. Thus, the only ground on which the proposed evidence of the intention of the parties could, in any aspect of the case, be held admissible, was by that decision taken away; for parol evidence is not admissible to explain an asserted ambiguity, which this court, upon full consideration of the very evidence out of which it is alleged to arise, has decided has no existence. — Doe ex d. Hughes v. Wilkinson, 21 Ala. 296.

It having been decided when the ease was here before that the words of the certificate did not describe the deed, but did describe the relinquishment, it is clear that parol evidence was inadmissible to prove that the instrument not described was in fact the one to which the parties intended to refer. — 4 Phill. Ev. 529, 571; Bell v. Morse, 6 N. H. 205; Sellwood v. Mildmay, 3 Vesey, Jr. 306; Flournoy v. Mims, 17 Ala. 36.

The court permitted the appellee to show, by the testimony of the justice of the peace, that the last certificate was made under an examination of Mrs. MeBryde which had relation to the joint deed of her husband and herself, and not to the relinquishment of dower by her. This was equivalent to proving by direct evidence to which of the two deeds the certificate was intended to refer, and the court erred in permitting it to be introduced.

But, although the court erred in permitting the appellee to prove, by extrinsic evidence, that it was the intention of the parties that the certificate should refer to the deed, instead of the relinquishment; still, as the matter to be determined was the meaning and application of the words used in the certificate, it was the duty of the court to receive evidence of the condition of things in viewT of the parties at the time it was made. All written instruments tacitly refer to the circumstances in which their authors stand when they make them, and a knowledge of these is ancillary to the right interpretation of the language employed. By receiving evidence which shows the situation of the party, in all his relations, to persons and things around him, the court is, as it were, placed in the position of the person who used the words, and is better able to determine their meaning and application. — 1 Greenl. Ev. §§ 277, 287-8; Roseborough v. Hemphill, 5 Rich. Eq. 105.

The appellee had, therefore, the right to show what was the state of the paper, on which the certificate was written, at the time the certificate was placed there. Such evidence might affect very materially the meaning and application of the words used in the certificate. For, if when the acknowledgment was taken and certified, the deed of McBryde and wife was the only conveyance written upon the paper, it is obvious that the certificate would bo referred to that deed, and not to the relinquishment of dower. Such evidence would show that, when the certificate was made, the deed of McBryde and wife was the only deed in existence, which answered the description furnished by the words “the foregoing instrument,” as used in the certificate; and these words, when read by the light of this fact, would necessarily be held to mean the first deed. This would not be evidence of the intention of the parties, independent of the writing, but of a contemporaneous fact, ancillary to a right interpretation of the words of the writing. — 4 Phill. Ev. 537, 573, 593 ; Haywood v. Perrin, 10 Pick. 228.

Accordingly, the court did not err in refusing to exclude from the jury the answer of the witness Parker to the 7th interrogatory, which tends to show 'that the last certificate was completed before the reliuquishment of dower was written.

[2.] The rule, that a party who seeks to discredit a witness, by proof of contradictory statements made by him, must first lay a foundation for doing so, by inquiring of the witness whether or not he has made such statements, applies as well where the evidence which is sought to be contradicted is in the form of a deposition, taken under commission, as where it is given in the course of an oral examination of the witness on the trial; nor is the application of this rule prevented by the fact, that the previous contradictory statements sought to be introduced wer-e made under oath, and in writing.. Both of the propositions above stated seem to be questioned in the opinion of Ormond, J., in Heirs of Holman v. Bank of Norfolk, 12 Ala. 370, (408-9.) But the intimation there made, that the rule in question does not apply where the evidence which is sought to he contradicted is in the form of a deposition, is opposed to the decision of the court, upon this very point, in the case of Howell v. Reynolds, 12 Ala. 128, (181.) This last decision is, indur opinion, consonant with reason, and is supported by the great weight ot authority. — See, particularly, Unis v. Charlton, adm’r, 12 Graft. 484, and Conrad v. Griffey, 16 Howard, 38, in which the question is elaborately considered, and decided in accordance with Howell v. Reynolds, supra. To the same effect are Kimball v. Davis, 19 Wend. 437 ; S. C., 25 Wend. 259; Story v. Saunders, 8 Humph. 663; Jackson v. Kinsey, 7 Geo. 428; Hooper v. Moore, 3 Jones, (N. C.) 428.

In reference to the second proposition above stated, the intimation in Heirs of Holman v. Bank of Norfolk, (supra,) to the effect that the rule referred to does not apply, where the effort is to impeach the witness by the introduction of contradictory statements made by him in some former deposition, is opposed, not only to the decision in Howell v. Reynolds, (supra,) but also to the subsequent case of Powell v. The State, 19 Ala. 577. In the former of the two cases last cited, the court refused to permit a witness, whose deposition had been read on the trial, to be impeached by the introduction of an affidavit, previously made by him, touching the same facts, for the reason that the wdtness had not been examined in reference to the affidavit, And in the other case, (Powell v. The State, supra,) the prisoner, in order to impeach one of the State’s witnesses, offered the written testimony of the witness given before the committing magistrate,as materially different from what he swore on the tidal. This court held, that the evidence was inadmissible, for the reason that the witness had not first been examined, as to the time, place, and circumstances of the previous statement. See, also, Drennen v. Lindsay, 15 Ark. 359 ; 1 Greenl. Ev. §§ 462-3, and notes; Wormley v. Commonwealth, 10 Graft. 658, (688.)

A seeming exception to the general rule has been established by this court, in cases where a party takes the deposition of a witness more than once in the same suit, and reads one of the depositions on the trial. It is held, that he thereby makes the previous depositions evidence, and they may be referred to by either party for the purpose of sustaining or discrediting the witness. — Carville v. Stout, 10 Ala. 796, (802 ;) Hester v. Lumpkin, 4 Ala. 512; see, also, Williams v. Chapman, 7 Geo. 467 ; Bryan v. Walton, 14 Geo. 186, (195.) The theory of these cases is, that where several depositions of a wilness are taken in the same suit, they all together stand in the place of the witness, and one of them being read on the trial, inconsistent, statements in the others can as well be referred to, for the purpose of impeaching the witness, without the necessity of laying the usual predicate, as if the evidence contained in all the depositions had been delivered by the witness in the course of an oral examination at the bar. In the present case, the deposition which was offered for the purpose of discrediting the witness, was taken in a different suit, and hence it does not fall within the exception established by the cases last cited. It follows, that the plaintiff not having laid the proper foundation for impeaching the witness by the introduction of his deposition taken in the chancery suit, the court did not err in excluding it.

Judgment reversed, and cause remanded.

A. J. WALKER, C. J.

The acknowledgment, following the relinquishment of dower, declares itself applicable to “ the foregoing instrument.” The defendant was permitted in the court below to show, by parol evidence, that the deed of McBryde and wife, and not the relinquishment of dower, was the instrument intended to be designated by the words, “foregoing instrument.” The majority of the court decides that the court erred in admitting that evidence, and from the opinion on that point I dissent.

The certificate evidences the statutory acknowledgment of the execution of “ the foregoing instrument.” The subject of the acknowledgment is described by reference to the extrinsic fact, that it precedes or goes before the certificate. Resort must be had to extrinsic evidence to ascertain the extrinsic fact — to determine what instrument is “ the foregoing instrument” referred to in the certificate. “ Where there is a devise of an estate purchased by A, or .of a farm in the occupation of B, it must be shown by extrinsic evidence, what estate A purchased, or what farm was in the occupation of B, before it can be known what was devised.” So here, when the acknowledgment is of the execution of the foregoing instrument, it must be shown by extrinsic evidence what was the foregoing instrument, before it can be known of what instrument the feme covert acknowledged the execution. 2 Phil, on Ev. (Cow. & Hill’s notes,) ed. of 1859, 718, 738, 739 ; 2 Phil, on Ev. (ed. ’50,) note 496; Sanford v. Raikes, 1 Mer. 646-653; Stubbs v. Sargon, 2 Keen, 255-265; 1 Green, on Ev. § 286; Morton v. Jackson, 1 S. & M. 494-501; Hodges v. Horsfall, 1 Russ. & Myl. 116; Ryers v. Wheeler, 22 Wend. 148 ; Blake v. Doherty, 5 Wheaton, 362; Hildebrand v. Fogle, 20 Ohio, 147; McLendon v. Godfrey, 3 Ala. 181; Miller v. Travers, 3 Bing. 244.

Upon looking at the extrinsic evidence adduced in this case, we find that there are two preceding or foregoing instruments; the deed of McBryde and wife, and the relinquishment of dower by Mrs. McBryde. The latter is the next preceding instrument; and if the certificate had referred to the next foregoing or next preceding instrument, the reference to the relinquishment of dower would have been indisputable, and could not have been controverted without varying the language of the certificate itself. The two instruments alike answer to the reference in the certificate, and either may be held to be the one referred to without varying the import of the certificate. The extrinsic evidence thus bringing to view twro things responding to the reference in the certificate, it becomes the province of the jury to determine, in the light of extrinsic evidence, to which one of the two things reference was actually made. — 2 Phil, on Ev. (ed. of 1859,) 719, note 510. Of this doctrine there are many judicial recognitions and illustrations. Where there w’as a grant of a tract of land called Black Acre, and it was shown that there were two tracts by that name, it was held to be for the jury to give operation and effect to the grant, by ascertaining which tract passed. Where there was a call in the description of land for the head of Swan Greek, and there, were two creeks called Swan Creek, and two places were set up as the head of Swan Creek, it was deemed a duty of “ the jury to determine in the first case, according to the evidence, which creek was intended; and in the second, which place is the head of the creek.” “So, if a tree is called for, and there are two trees set up as the call; and so, if the line of a tract of land is called for, and there are two tracts of that name, the jury are to decide, which is the tree intended, and which is the tract of land intended.” — Hammond v. Ridgely, 5 Har. & Johns. 245-259; Proprietors of Claremont v. Carlton, 2 N. H. 369; Hoe v. Burt, 1 Term, 395; Linscott v. Pernald, 5 Green, 496; South Carolina Soc. v. Johnson, 1 McCord, 46 ; 4 Starkie, 1023.

I have conceded, that if the force of the language of the certificate, “foregoing instrument,” were such as to refer only to the next preceding instrument, the evidence that it was intended to apply to the deed of McBrydeand wife would be inadmissible. It is contended, that the decision of this court in this case, as reported in 21 Ala. (296,) adjudges the question of the import of the language adversely to the admissibility of parol evidence, and that that decision forcloses the inquiry as to which was the instrument referred to. When that decision was made, there was no evidence before the court except the papers themselves, and upon that evidence the court was called to pass. The decision is made to rest upon the facts then before the court. The decision of the court was a conclusion inferred from the facts which the record presented to the court for its consideration. The facts then before the court, tending to the conclusion attained, and together producing the conviction announced, were, that the relinquishment of dower was in immediate juxtaposition to the certificate in question ; that there was a different certificate of acknowledgment by Mrs. McBryde, as well as her husband, to the other deed; and that if the last certificate did not apply to the relinquishment of dower, it was without acknowledgment. I do not dissent from the decision of the court upon those facts. It announced no proposition of law farther than was involved in its construction of the facts before it. It did not attempt to construe the certificate itself. It recognizes the admissibility of extrinsic evidence, by resorting to it in determining which was the foregoing instrument referred to, and pronounces a conclusion drawn from the evidence then before the court. The decision goes no farther. That decision, upon the facts then presented, can furnish no criterion for ascertaining the effect of a different state of facts, presented upon a subsequent trial, and does not announce any proposition, inconsistent withjfche admissibility of other evidence. — Walker v. Forbes, 31 Ala. 9.

It was permissible for the defendant to meet and rebut the primafacie case made out by the testimony adduced on the former trial.

The certificates and the deeds are made by different persons, for different purposes, and at different times, and have different objects in view; and, I think, cannot be regarded as comprising one instrument. The certificate, though written on the same paper, is not a part of the sarpe instrument with the deed or the relinquishment of dower; and the foregoing instrument is a matter altogether extrinsic of the certificate, and the phrase, foregoing instrument, is a reference to an extrinsic fact, and presents the case of a latent ambiguity, as defined in the opinion of the majority of the court.

If the deed of McBryde and wife, with the certificate which follows it, and the relinquishment of dower by Mrs. McBryde, with the certificate which comes immediately after it, could all be regarded as composing one instrument, then it would be clear that parol evidence to explain the meaning of the phrase, “foregoing instrument,” would be inadmissible, for the ambiguity would be patent. But I do not regard the justice’s certificates of the'acknowledgment of instruments as parts of those instruments. The instrument is complete before the acknowledgment is taken. The justice merely exercises a power conferred upon him by law, in certifying the acknowledgment or proof of the execution of the previously completed instrument. He is no party to the instrument, and has no power to add to it. It is totally incomprehensible to me, how the official certificate ean be a part of the instrument, the execution of which it is designed to attest. It seems to me it would be quite as reasonable to say, that the probate of a will by judicial decree, and the will itself, were only parts of one and the same instrument. I know of no authority, or principle, which supports the position of my brethren in this particular. The certificate is not the act of any party to the deed. It is an independent act, of an officer appointed by law, having an independent purpose; is not a matter of contract, and can, in my opinion, with no propriety be deemed a part of the contract.