Tranum v. Wilkinson , 81 Ala. 408 ( 1886 )

STONE, C. J.

— The recital in the bill of exceptions is, that the “ plaintiff offered in evidence . . a mortgage from, and signed by ¥. J. Hurston and G. A. Edwards.” The exception is, “ to the introduction of said mortgage the defendant objected. The court overruled the objection, and the defendant excepted.” It is here urged that the certificate of proof by one of the subscribing witnessess, that the grantors executed the mortgage, failed to conform to the statutory requirements, and therefore the court erred in allowing the mortgage to go in evidence to the jury. The question of the execution of the mortgage was not raised by the objection, and we need not consider the sufficiency of the certificate. That certificate and its sufficiency could only be material, when it was relied on as a substitute for proof by the subscribing witnesses. In other words, when it was claimed the mortgage was self-proving. — Code of 187-6, § 5154; Hart v. Ross, 64 Ala. 96 ; Bancum & Jenkins v. George, 65 Ala. 259; Boykin v. Smith, ib. 294; Coker v. Ferguson, 70 Ala. 284; Rosney v. Moss, 76 Ala. 491. The recital in the bill of exceptions that the mortgage was “ from and signed by ” the mortgagors, repels all inference and presumption that the defect in the certificate, or, of proof of execution, was the ground of objection. — March v. England, 65 Ala. 275.

The mortgage from Webb and wife is not in the transcript and we can not consider it.

The description of the land in the mortgage is not void for uncertainty, and there was no error in receiving parol testimony to show what particular lands were known as the “ Middlebrooks place, where the said Hurston lived last year, and where Henry Tally now lives.” — Bancum v. George., 65 Ala. 259 ; Driggers v. Cassady, 71 Ala. 529 ; see Chambers v. Ringstaff, 69 Ala. 140; Meyer v. Mitchell, 75 Ala. 475.

Affirmed.