Berow v. Brown , 208 Ala. 476 ( 1922 )

Suit in ejectment by appellant against appellee.

The rulings of the trial court sustaining the defendant's objections to the introduction of the certified transcript of the record of the two deeds referred to in the statement of the case, and which constitute essential links in the plaintiff's chain of title, present the question of first importance on this appeal. The contention against the introduction of these deeds appears to be based upon the defective acknowledgment before the notary public, in that there were omitted the statutory words, "They being informed of the contents of the conveyance" (Code 1907, § 3361), and, further, that the signatures of the grantors were not attested by two witnesses, as required by section 3355 of the Code of 1907. The acknowledgment states in part, in substance, that the grantors acknowledge having signed and delivered the instrument as their free and voluntary act "for the uses and purposes therein set forth"; and counsel for appellant insist that these latter words, above quoted, necessarily import the meaning that the grantors were informed of the contents of the conveyance, and therefore there was a substantial compliance of the statutory form, which is all the law requires, citing Rosebrook v. Martin, 200 Ala. 592,76 So. 950, among other authorities. The conclusion which we reach, however, renders unnecessary a decision of this question, and we therefore pretermit its consideration.

The bill of exceptions does not state that plaintiff did not have the custody or control of the original deed, and this is assigned as an additional reason for sustaining the action of the trial court in excluding the certified transcripts of these deeds in evidence. This of course was a condition to the admissibility of these transcripts under section 3374 of the Code of 1907 (Acree v. Shaw, 202 Ala. 434, 80 So. 817), but there was no objection interposed upon this ground. Had such objection been interposed upon the trial doubtless plaintiff would have offered proof in support of such condition. The objections to the admissibility of these certified transcripts appear in the statement of the case, and were based upon certain specific grounds — none of which contain any suggestion of the objection now urged. It is a well-understood rule that when specific objection is made, other objections are waived. Smith v. Bachus, 195 Ala. 12, 70 So. 261.

We are therefore brought to a consideration of the objections interposed. The certified transcripts disclose that the deeds purporting to convey the land involved in this suit had been of record in the probate office of Cullman county for a period of more than 20 years; and plaintiff insists that these transcripts were admissible under the provisions of section 3382 of the Code.

Opposing counsel urge, however, that this section only applies to validly executed instruments, citing in support thereof the case of Holloway v. Henderson Lbr. Co., 194 Ala. 184,69 So. 821. With this we of course agree, but we are of the opinion that certainly, prima facie, these instruments were validly executed.

The insistence of counsel for appellee that a conveyance by a corporation must have two witnesses if improperly acknowledged is without merit. The argument upon this question for appellee is that the acknowledgment was defective, and therefore void, and that, as a corporation is unable to write and have a signature of its own, a conveyance executed by it, when defectively acknowledged, must be attested by two witnesses under that portion of section 3355 of the Code, reading:

"The execution of such conveyances must be attested by one witness, or, where the party cannot write, by two witnesses who are able to write, and who must write their names as witnesses."

We think it too clear for discussion that this language has no reference to the execution of a conveyance by a corporation, and that by analogy the case of Graham v. Partee, 139 Ala. 310,35 So. 1016, 101 Am. St. Rep. 32, is conclusive against the contention here made.

It is of course well understood that a certificate of acknowledgment to a deed, though defective in form and void as an acknowledgment, may be treated as an attestation of the signature of the conveyance by the person signing as notary. Jones v. Hagler, 95 Ala. 529, 10 So. 345.

The first deed, the transcript of which was offered in evidence, purports to be the deed of the Chicago Title Trust Company, a corporation, and Henry W. Leeman, trustee, and filed for record January 5, 1900. It purports on its face to have been executed by those named as grantors therein, and the testimonial clause recites the execution of the paper and the affixation of the corporate seal by the corporation, and the record indicates that the corporate seal was affixed and duly attested by the secretary of the corporation. Prima facie, the deed was validly executed by the corporation under the authority of Graham v. Partee, supra. As to the execution of the deed by Leeman, trustee, the deed discloses upon its face that he subscribed his own name, and that the signature was witnessed by the notary who signed the acknowledgment. What is said in regard to the deed of the Chicago Title Trust Company is equally applicable to the second deed executed by the Alabama Vinyard Winery Company, which need not be given separate consideration here.

The contention that these deeds were executed and recorded several years prior to the adoption of section 3382 of the Code of 1907, and therefore said section should not be here given application, cannot be sustained. This section is a remedial statute, Barrington v. Barrington, 200 Ala. 315, 76 So. 81, relating only to the question of practice and procedure, and was given full force and effect by this court under similar conditions in the recent cases of Veitch v. Hard, 200 Ala. 77,75 So. 405, and Leek v. Meeks, 199 Ala. 89, 74 So. 31.

We therefore conclude that these deeds appear upon their face to have been validly executed; [and conceding, without deciding, the defectiveness of the acknowledgment] having been of record for more than 20 years the certified transcripts thereof were not subject to the objection interposed to their introduction, and that the court below committed reversible error in sustaining the objection.

Counsel for appellee further insist that no reversal should be rested upon this ruling of the court for the reason the affirmative charge was given for the defendant, and the bill of exceptions fails to disclose that it contains all the evidence. This, however, does not preclude the plaintiff from reviewing the ruling of the court in excluding this evidence, which was vital to the maintenance of his suit, as he clearly relied upon a complete chain of title, and not upon the question of possession. Southern Supply Co. v. Standard Equipment Co.,165 Ala. 582, 51 So. 789.

In the reply brief counsel for appellee suggest that the deeds referred to in this opinion were patently irrelevant, for the reason that the plaintiff had shown neither possession nor title back to the government. This contention, however, is not sustained by the bill of exceptions, which recites that plaintiff offered evidence tending to show a complete paper title to the land described from the government to the Chicago Title Trust Company, a corporation, and Henry W. Leeman, trustee.

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

Reversed and remanded.

McCLELLAN, SOMERVILLE, and THOMAS. JJ., concur.