Allred v. Elliott , 71 Ala. 224 ( 1881 )

STONE, J.

The testimony of the handwriting of the subscribing witness Dickinson, to the deed purporting to be made by Henderson, was inadmissible. To authorize such evidence, it was necessary to show the subscribing witness was dead, was out of the State, or, for some other reason, had become incompetent to testify. — 1 Brick. Dig. 855-6, §§ 741, 2, 3.

There was an offer of testimony, by a witness who could neither write nor read writing, that a woman, who was absent from the State when last heard from, did write or sign a second deed offered, as a witness. This statement is somewhat indefinite. It probably pointed to Martha Kitchens as the “woman,” who, according to the testimony of the witnéss Clayton, was one of the subscribing witnesses to the deed from Knighton to him. Thus interpreted, this testimony ought to have been received. Of course, the witness’ inability to write, or to read writing, might impair the weight of the testimony he gave, but it would not render it illegal. A deed executed by a person who writes or signs his own name, is valid, if attested by one witness who is able to write, and does write his name.-Code of 1876, § 2145; Stewart v. Beard, 69 Ala. 470.

The charge excepted to asserts a correct legal principle. Mastin v. Brown, 70 Ala. 235. If its tendency was to mislead, this was a subject for an explanatory charge, but was no ground for reversal. — 1 Brick. Dig. 344, § 129.

Beversed and remanded.