Mayhall v. Hyde

The suit was on a promissory note claiming a waiver of exemptions as to personality. In order to bind the defendant as to the waiver, the note must be signed by the defendant. Code 1923, § 7960. The defendant being unable to write his name, his mark is his signature when his name is written near it and witnessed by a person who writes his own name as a witness. Code 1923, § 1.

The written name and the witness is for the purpose of identification of the X-mark made by the person sought to be bound. The X-mark is the signature, and must be made by the obligor or some one duly authorized by him. At the common law a person might adopt any form of signature, and, when adopted, was sufficient to bind the party using it upon all contracts requiring signature. 36 Cyc. 448, III A. McGowan v. Collins,154 Ala. 299, 46 So. 228. So they may continue to do now, if literate.

For the purpose of protecting illiterate persons and to prevent fraud, signatures to certain instruments (one of which is here considered) are required to be executed in a certain way, so as to remove as far as possible doubt as to the act of the person making the mark. The mark is the act of the obligor. The name of the attesting witness is not a part of the signature but is necessary under the statute to give force to the X-mark made by the obligor, as is the writing of the obligor's name near the X-mark. Johnson v. Davis, 95 Ala. 293,10 So. 911.

When the agent of the payee held the pen and the payor touched the pen while the mark was being made, the mark was that of the payor and not of the agent, although the payor in a sense acted through an agent.

The application for rehearing by appellee is overruled.