England v. Hatch , 80 Ala. 247 ( 1885 )

CLOPTON, J.

The plaintiff, having proved that he is the son and only heir at law of D. Gr. England, who died in June, 1868, and having read in evidence a deed made by W. LI. Barnwell and wife, December 31, 1866, conveying the land in controversy to his father, offered for the purpose of showing title in Barnwell, a transcript of a deed, and the endorsements thereon, as the same appear of record in the office of the judge of probate of Wilcox county. On objection by defendant, the court excluded the transcript. The specific objections made in the Circourt Court are; that the execution of the deed had not been proved, and that it had not been acknowledged, nor probated as required by the statute.

The transcript was offered in evidence under section 2154 of the Code. The deed was recorded within less than twelve months from its date, and the loss of the original conveyance was sufficiently proved ; but the probate does not substantially conform to the requirements of the statute. To be sufficient, the substantial facts as declared in the statutory form of probate of conveyance, must be expressed in the certificate. The certificate does not show that the grantors voluntarily executed the conveyance, nor that the probating witness attested it in their presence. And it appears, that the probating witness was not sworn, and did not depose, but merely acknowledged the facts stated in the certificate. — Mc Claskle v. Amerine, 12 Ala. 17; Sharpe v. Arme, 61 Ala. 263; Boykin v. Smith, 65 Ala. 294.

It is insisted, that the deed falls within the rule laid down in White v.Hutchings, 40 Ala. 553, where it was held, that if the deed has been recorded, more than twenty years in the proper office in the proper county, the presumption is, that its execution had been legally proved or acknowledged; that a proper certificate had been written upon or under the deed ; and on proof of its loss, a duly certified transcript must be received. The transcript offered in evidence does not come within this rule, inasmuch as the deed had not been recorded twenty years before the day of trial; and we are unwilling to extend the rule. The certificate of probate not being effective to impart probative force to the deed, it devolved on the plaintiff to prove its execution and the correctness of the copy. Evidence that the subscribing witnesses were dead, aud that the grantors had removed beyond the limits of the State, is insufficient for this purpose. The transcript was properly excluded.

The record discloses no evidence tending to show, that the plaintiff, or those under whom he claims, ever had possession of the lands; but on the contrary, it tends to show that the defendant and those from whom she derives title, had been in possession since 1844. The plaintiff in a statutory real action, as in common law ejectment, must recover on the strength of his own title. "When the plaintiff closed his evidence, the defendant might have rested on the then state of proof. We discover no valid objection to the admissibility of the muniments of title introduced by the defendant. The execution of the conveyance from Kimbrough and wife, to Watkins, was proved, and the will, its probate, and the partition of the lands duly certified. But if they were inadmissible, it would not work a reversal, as the plaintiff was not entitled to recover on the case made by him. — Crosby v. Pridgen, 76 Ala. 385; Baker v. Barclift, 76 Ala. 414.

Affirmed.