Hart v. Ross & Garner , 64 Ala. 96 ( 1879 )

BEICKELL, C. J.

When this cause was before this court at a former term, it was decided, that the execution of the deed, under which the plaintiff claims title, was proved by one of the subscribing witnesses in the form, and the probate certified by an officer having authority to take and certify it, in accordance with our statutes, and that no other evidence of its execution was necessary to its admissibility. Hart v. Boss, 57 Ala. 518. Conveyances, acknowledged (or proved) and certified as authorized by the statutes, are admissible in evidence, without other proof of execution, only when recorded in the proper office within twelve months from their date.. — Code of 1876, § 2151. This deed was not recorded within that period; but, in the decision to which we have referred, this defect was cured by its registration within twelve months after the enactment of the statute, approved March 20, 1875, which authorized its registration within that period, and gave to it, when registered, all the force and effect it would have had, if it had been registered within twelve months from its execution, saving the rights of bona fide creditors and purchasers without notice. Pamph. Acts 1871-5, p. 180. True, this statute does not seem to be carried into the Code of 1876. But, if we were to concede that the omission operates its repeal, the force and effect the deed had acquired, while it was in existence, would not be destroyed. Generally, it may be true, that repealing statutes, not operating to infringe vested rights, affecting only rules of evidence or remedies, have a very large retroactive operation. The rule is materially modified as to the Code, by the 10th section thereof, which declares: “ This Code shall not affect any existing right, remedy, or defense ; nor shall it affect any prosecution now commenced, or which shall hereafter be commenced, for any offense already committed. As to all such cases, the laws of force at the adoption of this Code shall continue in force.” When the Code became operative, this suit was pending; the deed had been legally registered, and was a legal instrument of evidence ; and this section of tbe Code preserves it for all the purposes of the suit.

The Circuit Court erred, in not admitting tbe deed, in evidence ; and for tbe error, tbe nonsuit must be set aside, and tbe cause remanded.