Elston v. Roop & Sewell , 133 Ala. 331 ( 1901 )

SHAKPE, J.

Plea. 2 to the complaint filed in the city court did not present a material issue, nor from anything appearing in the pleadings could it be seen that plea 3 presented a defense since it attempts only to set up fraud in the execution of a mortgage without showing that plaintiffs’ title to or right to recover the property depended on or was affected bv the alleged fraud. These pleas were each subject to the demurrers and to ¡the motion to strike.

A writing may be validly attested by one who did not see the parties ¡to it sign, where they appear before him and acknowledge the signatures are their own, and requested him to sign in attestation of the fact. — 1 Devlin on Deeds, § 257; 9 Am. & Eng. Ency. Law, 149 and note 4. In this way Stone’s attestation of the mortgage under which the plaintiffs’ claim was procured, and thereby the mark of Jarrett Elston became a signature within the meaning of that clause of section 1 of the Code which provides that “ ‘signature’ or ‘subscription’ includes mark when the person cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness.”

The fact that plaintiffs were described in the mortgage as agents for Gardner did not prevent title to the property from vesting in plaintiffs. It may be that as between them and Gardner they were only trustees, but they were not for that reason incapacitated fe> maintain the action. — Baker v. Washington, 5 Stew. & Port. 142; Pierce v. Jackson, 56 Ala. 599.

The mortgage though given to secure performance of a contract with Gardner was not rendered inadmissible as by the non-production of that contract, for under the issues the performance or breach of that contract was not involved. The mortgage on its face imported a present conveyance of the property sued for to the plaintiff as security for a debt to accrue upon specified contingency, viz.: defendants7 failure to carry mail on a given route for four years. It contains nothing either expressly or impliedly postponing plaintiffs’ right to have possession of the property or making that right to depend on a failure to perform the contract with Gardner. It, therefore, entitled the plaintiffs to have possession immediately upon its execution.- — Ellington v. Charleston, 51 Ala. 166; Heflin v. Slay, 78 Ala. 180.

‘The gist of the action Avas the alleged Avrongful detent-ion, anti if the validity of the mortgage be assumed, the detention was wrongful since the plaintiffs had both the legal title and the right of possession. On the question of whether the mortgage was rendered invalid by fraudulent representations the burden of proof was on defendants and the evidence on that issue does not seem to preponderate in their favor.

Upon defendants’ suggestion made under section 1477 of the Code the court sitting without a jury ascertained the amount'of the mortgage debt to be $300, which was the amount expressly stipulated for in the mortgage as liquidated damages to accrue upon the failure of defendants to carry the mail on a given route for four years. This finding was proper whether the stipulation be regarded as one for liquidated damages of for a penalty. If for the former, the mortgage was security for the whole amount, and if for the latter the mortgage was still security for the damage actually sustained by the breach of the agreement, :and of this amount the agreement of parties was evidence upon which the court was authorized to predicate its finding in the absence of other evidence on the subject, of which there was none.

The amount- of the debt as ascertained exceeded the value of the property and, therefore, the court was not, under the statute, required to so frame the judgment as to allow defendants to pay the debt and costs in discharge of their liability to execution on the principal judgment; but the fact that the judgment was so rendered did not injure the defendants and was, therefore, not error entitling them to a reversal.

The judgment will be affirmed