Hayes v. Banks , 132 Ala. 354 ( 1902 )

DOWDELL, J.

— This is a statutory action in the nature of ejectment. The appellant, plaintiff in the court below, took a non-suit with leave to set aside on bill of exceptions on account of the adverse ruling of the trial court on the evidence. Only one question is presented, and that is upon the court sustaining the objection to evidence offered by the plaintiff to prove the execution of a deed relied upon by the plaintiff as title to the land in question, and which was necessary to his right of recovery. This deed purported on its face to have been signed on the 21st day of November, 1896, by “Marcellas Banks, by D. A. Flournoy, his attorney in fact,” and also by D. A. Flournoy, mortgagee. It was acknowledged in the State of Mississippi before one C. E. Gay, who styles himself as “chancery clerk,” and ex-officio notary public.” This deed, when offered in evidence, was objected to by the defendant and the objection sustained by the court. The plaintiff thereupon introduced I). A. Flournoy as a witness, and offered to prove by him that he signed said deed, Avhich was objected to by the defendant, and the objection being sustained by the court, the plaintiff was forced to take a non-suit, reserving an exception to the ruling of the court.

A “chancery clerk” of another State is not designated in our statute as one of the officers authorized to take acknoAvledgments of deeds. And in the absence of an official seal as notary public, or other evidence of notarial powers, the mere fact that he styles himself “ex-officio notary public” does not aid the matter. While the deed, however, .for want, of. a. proper certificate of acknowledgment, was not admissible in evidence, as self-proving under the statute, it was capable of being rendered competent by proof of its execution. It has been held by this court, that in .cases, where the certificate of acknowledgment is defective, or had before one. not authorized to take acknowledgments, the signing of such certificate will nevertheless operate, as an attestation of the deed.—N. C. & St. L. R’y. Co. v. Hammond et al. 104 Ala. 191; Torrey v. Forbes, 94 Ala. 142. See also 11 Am .& Eng. Ency. Law, (2d ed.), p. 602.

Section 1797 of the Code of 1896 provides that “the execution of any instrument of writing attested by witnesses may be proved by the testimony of the maker thereof, without producing or accounting for the absence of the attesting witnesses.” It was under this section that the plaintiff offered the evidence of the wit: ness, I). A. Flournoy, the grantor and maker. It Avas competent to prove by this witness, under the above statute, the execution of the deed by proving his own sig: nature as the maker, and that of O. E. Gay as an attest: ing Avitness, and in the introduction of this testimony, it Avas AA'holly immaterial which the plaintiff offered to prove first. Nor Avill it be presumed from his failure to offer proof as to the signature of the attesting witness, after being denied the right to prove by the Avitness his own signature as maker, that he would not have done so, had the witness been permitted to testify to his oavu—Pollak v. Caldwell, 91 Ala. 353. The court erred in sustaining the objection to this evidence. Under the mortgage Avhich was introduced in evidence, the legal title to the land, was shown to be in D. A. Flournoy at the date of the deed made by him to the plaintiff, and the mere fact that he signed the deed both as D. A. Flournoy individually, and D. A. Flournoy “as attorney in fact for the mortgagor,” did not render it necessary to the admission of the deed in evidence, to show his power of attorney. The legal title was in him, and not in his mortgagor, and no, power of attorney, was necessary to convey the same.

For the error pointed out, the judgment will be reversed and the cause remanded.