Branch v. Smith , 114 Ala. 463 ( 1896 )

HEAD, J. —

Statutory real action by appellant against appellee for a lot of land in Brundidge. There were two issues : not guilty, and a suggestion of adverse possession for three years and permanent improvements, under the betterment act. It is conceded that the land sued for belonged to D. W. Branch, on and prior to January 15, 1883. On that day, he executed to his wife, the appellant, for a recited valuable consideration, a deed which was intended to embrace the land in suit. Whether the description, as therein set forth, was sufficiently certain to render the deed an operative conveyance was made a controverted question, by an objection interposed by the defendant. We will see further on, how the objection, if well taken, operates upon the defendant herself. As between D. W. Branch and his wife, the appellant, the undisputed evidence establishes a complete change of actual possession from the former to the latter, from and after the execution of the deed to her, on January 15, 1883 ; so that, though the deed may have been inoperative as a conveyance, upon well recognized principles, she became entitled to recover, upon the strength of that possession, against any one subsequently coming into possession and showing no superior right to retain it. Did the defendant then show such superior right? Her position, in the case, appears to be equivocal or inconsistent. She claims to defeat the action under the plea of not guilty, upon a purported regular chain of title to herself, beginning with a deed from said D. W. Branch to his daughter, Mary E. Branch, dated March 10, 1883, yet upon plaintiff’s objections to the introduction of these several conveyances, defendant, as the bill of exceptions recites, stated that they only offered the deeds for the purpose of showing color of title and not as evidence of title, and the court admitted them in evidence, and instructed the jury that each of them was admitted only for the purpose of showing color of title. There was no claim or evidence by the defendant of ten years adverse possession, so that, the only possible relevancy of a color of title merely was to the issue under the betterment act, which, of course, did not go to the defeat of the entire action. Hence, if we take these deeds as the defendant, herself, and the trial court took them, it is demonstrated that the plaintiff was entitled to recover. The defendant, in that case, not having established herself as a purchaser, direct or remote, from D. W. Branch, was in no position to invoke an intent to defraud creditors infecting the deed from him to his wife, or his transfer to her of the actual possession, as she undertook to do on the trial. But we will look to the deeds themselves and see if they may go further than mere color of title under the betterment act, and operate as a transfer of the title to the defendant. At the outset, we find that the first two deeds, viz., that from' E>. W. Branch to Mary E. Branch, and that from Mary E. Branch to her vendee, are infected with the sanie vice of description as the deed from D. W. Branch to appellant; so that if appellant acquired nothing by her deed, on account of that vice, the defendant acquired nothing by hers, for the same reason; and' upon the hypothesis that these instruments are void by reason of the uncertainty of description, the plaintiff was entitled to recover upon her prior actual possession. Let us examine the case, then, upon the postulate that the descriptions were sufficient. We have then a legal conveyance to the plaintiff from D. W. Branch which makes out her prima facie case. The defendant undertook to establish,, as we have seen, a deed from D. W. Branch to Mary E. Branch of date, March 10, 1883, which, if executed, was confessedly followed by regular conveyances to the defendant. Was such a deed established? The original was not produced; no effort was made to produce it,’ and no proof of its loss or destruction was made or attémpted. The defendant, against the objection and exception of the plaintiff, was permittecl to adduce the testimony of said D. W. Branch, on cross-examination, “that he made a deed to Mary E. Branch conveying to her the same land, hut it was not done in the presence of any one, and that no one ever saw him sign it; that there was no subscribing witness to it nor any acknowledgment. That to his best recollection, it was done in the early part of 1883.” “Defendant then exhibited a record to the witness which purported to be a copy of a deed from D. W. Branch to Mary E. Branch, dated March 10, 1883, conveying the land in controversy, signed by George A. Branch as a witness. Witness stated that the record appeared to be a copy of the deed, so .far as he remembered, but that he did not know when G. A. Branch’s name was signed to it as a witness, that it was not done at his request, nor with his knowledge or consent.’’ The defendant was also permitted, against the objection and exception of plaintiff, to give evidence to jirove that in 1893, D. W. Branch sent by mail to M. N. Carlisle, to be recorded, a deed from himself to Mary E. Branch, of which the said record was a copy, and that Carlisle had the same recorded, at once ; that George Branch’s name then appeal'd on the deed as a witness, as shown by the record. The defendant introduced said George Branch, and his testimony was to the effect that he was never present at, nor witnessed the execution of such a deed. . He remembered, on one occasion, on Sunday, his sister, Mary E. Branch, came into his room and said, “ ‘Brother George, sign this, ’ handing me a paper, and I wrote my name on it. I did not ask her what it was, and did not think anything about it. She did not tell me what it was. No one ever told me what it was. I never asked anybody what it was. Nobody has talked to me or with me about it since, except my sister called my attention to it quite a while ago in Bessemer, Ala. * * * I believe it was in July, 1885, while I was firing on the road running into Atlanta, that I signed the paper. I did not, at the time, notice any other name signed to it, and do not remember and do not know whether it was a note or deed, or what it was. I just signed the paper she handed me, at her request, where she told me to sign it.’’ The defendant, against the objection and exception of the plaintiff, was permitted to introduce the said record in evidence. The record did not show acknowledgment at all, nor registration within twelve months. It will be remembered, however, that the court admitted this evidence only as color of title. The difficulty is that it was also permitted to operate as evidence of a conveyance.

It is obvious, first, that no predicate was laid for the introduction of secondary evidence of the supposed deed, as evidence of title, and, second, if there had been, the undisputed evidence shows that the deed was not attested by a witness, in a way to make it operative as a conveyance. Conceding that it was executed by D. W. Branch and delivered, having no witness • or acknowledgment, it operated only as an agreement to convey, and will not be recognized in a court of law.

There was no question of fraud upon creditors properly involved in the case ; and if there had been, the record does not present a semblance of evidence tending to show that D. W. Branch, at the time he made the deed to his wife, owed a debt, or expected to incur one. Nor was there any evidence tending to dispute his testimony showing the validity of the valuable consideration recited in the deed. There was, therefore, nothing to submit to the jury upon the subject of fraud. The court erred in its several rulings on the trial, and in refusing to give the general affirmative charge requested by the plaintiff.

We wish.it understood that we do not decide whether the said deeds with uncertain descriptions of the property are valid or not. Under either view, as the case is now presented, the plaintiff is entitled to recover.

Reversed and remanded.