Turner v. Davis , 186 Ala. 77 ( 1914 )

ANDERSON, C. J. —

-The complaint in this cause contains a count for the statutory penalty for cutting trees on the land described therein as well as counts in trespass and trover for taking or converting the trees; the plaintiff relying upon title to the land and constructive possession as incident to said title, there being no adverse possession shown by the defendant, as the only acts of possession were those of cutting and removing the timber, the defendant claiming that he and not the plaintiff is the owner of the land, and was therefore the owner of the trees.

The first, and perhaps the most important question in this case, is the soundness of the ruling of the trial court in permitting the plaintiff to trace title to the land by certain certificates and patents to same pur-, porting to be signed by Robert B. Lindsey, then Govern- or of Alabama, by his secretary, Chardavoyne, and which were not executed by the Governor under the seal of the state. It is practically, conceded, and, indeed, has been held by this court, that such patents did not operate to convey the state’s title to the patentee, and that Acts of 1878-79, p. 198, did not cure the defect unless it was shown that the purchase money had been paid.—So. R. R. Co. v. Cleveland, 163 Ala. 470, 50 South. 122. On the other hand, it was held in the case of Jordan v. McClure Lumber Co., 170 Ala. 289, 54 South. 415, that said act of 1879 cured the defect, and that the purchaser acquired the title to the land when the proof showed the payment of the purchase money. ' The Legislature, realizing the justice of the claims of many citizens who held lands under said patents, and further realizing the great difficulty of showing the payment of the purchase money after the lapse of approximately 40 years, passed Act of 1911, p. 192, authorizing the admission of such documents in evidence and making them prima facie evidence of any sale or transfer of said land therein recited, and of the payment of the purchase money there- • for. This act was not passed before the trial of the cases supra, and was not therefore considered or referred to in either of said cases, but it was a law when this case was tried, and as said act made the documents and recitals therein prima facie evidence of the payment of the purchase money, under the authority of Jordan v. McClure Co., supra, the act of 1879 operated to confirm, or convey, the title of the patentee in and to the lands for which the patent was issued by said “Chardavoyne.”

. The only ground of objection made to the introduction of the deed from the Mobile & Ohio Railroad and W. Butler Duncan, et al., was that it was not properly .“acknowledged in conformity with the statutes of Alabama.” It may be that the acknowledgment was defective, but the deed was attested by witness Willoughby, and the acknowledgment, though defective as such, op-' erat'ed as an attestation by Chas. Nettleton, who attempted to take the acknowledgment. The fact that the acknowledgment was defective did not prevent the admissibility of the deed, or certified copy in- evidence, without proof of the execution of same more than 30 years after the execution and recordation of said deed, as curative statutes have been passed by nearly every Legislature, making such documents self-proving.

Nor was the certified copy of the power of attorney to Russell and Tacón and the deed from the Farmers’ Loan & Trust Company to Frank Moore objectionable for the reason that the certificate of the probate judge as to the authenticity of same was joint instead of separate. The certificate sufficiently sets out and designates each of the instruments, and was as efficacious as if a separate certificate was attached to each instrument.

There was no error in the admission of the deed from - Frank Moore to Thos. Brown, as it was good to convey the title of said Brown, whether the separate acknowledgment of the wife was sufficient or not, unless it was the homestead, and there was no proof that it was the homestead. The deed was attested, which made it valid-as to the dower of the wife whether the acknowledgment as to her was sufficient or not. Moreover, unless the land was the homestead, a conveyance by Moore alone would carry the legal title into Brown, subject to the-dower right of the wife of Moore.

The trial court did not err in admitting in evidence-the deed from Thos. M. Brown to the palintiff, Davis, for the reason that it was not recorded within a year after the execution of same. It may be that, under the statute of 1896 (section 992 of the Code of 1896) it was. not self-proving, unless recorded within 12 months, but said section, as brought forward as section 3374 of the-Code of 1907, omits' the time in which it must be recorded. As to whether or not the failure to record same was-prejudicial to the defendant, this fact did not appear-when the deed was offered, nor did such a fact subsequently appear, as the defendant made no attempt to show a purchase under Brown. He claimed from the Insane Asylum, which acquired only certain lands owned by the state, and not disposed of under the certificates and patents in question, and he had record evidence and constructive notice that the plaintiff’s grantor and his predecessors in title had conveyances to the land involved.

The trial court may have erred in admitting copies-of the ledger in the treasurer’s office, as the payments did not show a connection with the land in question, but this error was without injury to the appellant, as. this evidence was but a mere attempt to show by cumulative evidence the payment of the purchase money by-the holder of the certificates, and which fact was shown by the documents under the act of 1911, and which was not disputed.'

As we view this case the plaintiff was entitled to the general charge, except perhaps as to the count for the-statutory penalty, and we can safely say that the jury did not find for the plaintiff under this count. The verdict was for only $122.54, and this would be for only about 12 trees at the statutory price of $10 per tree. While there was no proof as to the exact number of trees cut, there was proof as to the number of logs, and the highest number of logs to the tree did not exceed 4, and the plaintiff’s evidence showed over 400 logs and the defendant admitted getting 320 logs, which would not be less than 80 trees. Therefore, to hold that the jury found for the plaintiff under the count for the statutory penalty would result in convicting them either of utterly disregarding the evidence or of imbecility. As the jury did not find for the plaintiff under the penalty count, and as the general charge could have been given for the plaintiff under the other counts, the giving of plaintiff’s special charges, or the refusal of those requested by the defendant, if error, was error without injury.

The judgment of the circuit court is affirmed.

Affirmed.

McClellan, Sayre, and Somerville, JJ., concur.