Johnson v. Goff , 116 Ala. 648 ( 1897 )

BR.ICKELL, C. J.

Appellant claimed title to the land in controversy as a purchaser at a foreclosure sale had under the power contained in a deed of trust executed in the year 1891, by Hattie F. Maughon to J. W. Goldsmith, trustee, to secure a loan made to her by the Atlanta National Building & Loan Association. This instrument purported in the granting clause and body thereof to be the deed of Hattie F. Maughon only, her name alone appearing therein, but was signed and acknowledged by herself and J. W. Y. Maughon, her husband. The latter’s name nowhere appears in the body of the instrument, nor does anything appear therein to indicate any intention on his part to become a grantor. Assuming a fact most favorable to appellant, that the land described in the deed was the property of the wife, the only question involved in the case is, whether, under the statute regulating the manner in which a married woman may alienate her real estate, this deed was efficacious to divest the title of Hattie F. Maughon. Sec. tion 2348, Code of 1886, reads : ‘ ‘The wife * * * cannot alienate her lands, or any interest therein, without the assent and concurrence of the husband, the assent and concurrence of the husband to be manifested by his joining in'the alienation in the mode prescribed by law for the execution of conveyances of land.” In construing this statute in Davidson v. Cox, 112 Ala. 512, we held that the assent and concurrence of the husband could be manifested only by his joining in the alienation in such a way as would be necessary to a conveyance of his interest in the land if it belonged to him in severalty, or jointly, or in common with others. It is well settled by the decision of this court that when a deed of conveyance is subscribed by more names than one, and some of the subscribers’ names are not 'shown in the body or granting clause, while others are there shown, such instrument is not the deed, and does not convey the interest, of those whose names are omitted from the granting clause and shown only in the signatures, when there is nothing in the deed to indicate an intention on their part to become grantors. — Sheldon v. Carter, 90 Ala. 381; Hammond v. Thompson, 56 Ala. 589; Blythe v. Dargin, 68 Ala. 370; Harrison v. Simons, 55 Ala. 510. It is manifest, therefore, that the husband did not join in the conveyance in controversy in such a manner as would have been been necessary to convey his interest in the land if it had been his property, and it results that the assent and concurrence of the husband were not expressed in the only mode in which the law authorized its expression. — Blythe v. Dargin, supra. The instrument was nothing more than the void deed of the wife, inoperative to divest her title in the land, and was properly excluded from the jury.

The judgment of the court below is affirmed.