Seibold v. Rogers , 110 Ala. 438 ( 1895 )

HEAD, J.

If the mortgagor, Davis, resided in Marshall county, and the mortgaged property was in that county, at the time of the conveyance, the delivery of the instrument to the probate judge of that county for record was all that was required of the plaintiff, to give notice of his lien — Code of 1886, §§ 1793, 1806. He was not required to supervise the act of the probate judge in recording the paper, and hence it is immaterial as far as the plaintiff’s rights are concerned that the recording officer committed an error in writing the mortgagor’s name “Cavis” instead of “Davis” upon the mortgage record. This conclusion is not logically distinguishable from our other rulings, from which we have no inclination to depart. We could not do so without disregarding the express language of the statute.—Leslie v. Hinton, 83 Ala. 266; Fouche v. Swain, 80 Ala. 151; Heflin v. Slay, 78 Ala. 180; Turner v. McFee, 61 Ala. 468; Mims v. Mims, 35 Ala. 23; Dubose v. Young, 10 Ala. 374; McGregor v. Hall, 3 Stew. & Port. 397; 20 Am. & Eng. Enc. of Law, p. 572.

2. When the plaintiff offered his mortgage in evidence, it became necessary to prove its execution. It purported to be attested by two witnesses, C.M. Wilkes and J. E. Rogers, the mortgagee. The latter could not be an attesting witness as he was a party to the instrument.—Coleman v. State, 79 Ala. 49. It was also shown that the name of the other witness was not written by himself, but by said Rogers. This is not, therefore, an attestation bv him.—Stewart v. Beard, 69 Ala. 470. The instrument must be treated as having no attesting witnesses, and it was necessary, therefore, to. prove the signature of the grantor. This could be done by the testi--mony of any competent witness, who was familiar enough with his handwriting to testify to the genuineness of the signature, or who could testify thereto from personal knowledge, as from having seen the grantor sign the instrument.—Mardis v. Shackleford, 4 Ala. 493; Lazarus v. Lewis, 5 Ala. 457; Cox v. Davis, 17 Ala. 714; Jones v. Hough, 77 Ala. 437. While Wilkes was not what the law denominates an attesting witness, yet it was competent to prove by him, if he knew the fact, that the mortgagor executed the instrument. The effect of his evidence, although not so stated in words, is, that Davis either signed or admitted the signature in his presence, but to the best of his recollection, he saw him sign the paper. This was sufficient prima facie proof to authorize the court to admit the mortgage in evidence. The preliminary question as to the execution of the mortgage was addressed to the court, and as the testimony of Wilkes constituted sufficient prima facie proof of execution by the mortgagor, it is wholly immaterial to inquire whether the court should or should not have permitted the plaintiff to also testify to the same effect. We do not, therefore, even consider whether the estate of Davis was interested in this suit, or whether the testimony of the plaintiff related to a transaction with a deceased person, within the meaning of our statute, upon the subject of the competency of witnesses. There was no error in admitting the mortgage in evidence.

3. In charging the jury that “the measure of the plaintiff’s damage in this case is the value of the property sued for at the time of the conversion, with the interest thereon down to the date of trial,” the lower court overlooked the facts, that the plaintiff was not the absolute owner of the chattels, but only a mortgagee, that the evidence tended to show the value of the property to be greater than the amount of the plaintiff’s debt, and that the defendant was claiming under and through the mortgagor. Under these circumstances, the value of the plaintiff’s interest, that is, his debt — principal and interest — not exceeding the value of the chattels with interest from the conversion, is the true .measure of his damages. The general rule, with its limitations and exceptions, will be found accurately stated in a note to Harker v. Dement, 52 Am. Dec. 670, 678, where many authorities are collected, and in numerous decisions in our reports. The rule applicable to this case is stated in Strong v. Strong, 6 Ala. 345, and Carpenter v. Going, 20 Ala. 587. So far from being able to say that the error was not prejudicial to appellant, it affirmatively appears that under its influence, the jury returned a verdict in favor of the plaintiff for more than he was entitled to recover, upon his own statement.

These are the questions of merit arising upon the record. We remark that there seems to be enough in the testimony of Lee Frazier to make it a question to be submitted to the jury, whether Davis, the mortgagor, resided in DeKalb or Marshall county at the time of the execution and filing of the mortgage. This being so, the general affirmative charge should not have been given for the plaintiff, since, if the mortgagor then resided in DeKalb county, the registration in Marshall county would not carry notice to a purchaser from him. — Code, § 1806.

Under the authority of A. G. S. R. R. Co. v. McAlpine, 80 Ala. 73, the second charge requested by the defendant, which referred the credibility of the evidence to the jury, ought to have been given. The burden was on the plaintiff to make out his case by proof, and if the evidence he offered in that behalf, was not to be believed by the jury, there was a failure of proof, entitling the defendants to a verdict.

Reversed and remanded.