21 Ala. 72 (Ala. 1852), Carter v. Doe ex dem. Chaudron

Citation21 Ala. 72
Opinion JudgeCHILTON, J.
Party NameCARTER v. DOE EX DEM. CHAUDRON.
AttorneyJOHN A. CAMPBELL, for plaintiff in error: P. PHILLIPS, contra:
CourtSupreme Court of Alabama

Page 72

21 Ala. 72 (Ala. 1852)

CARTER

v.

DOE EX DEM. CHAUDRON.

Supreme Court of Alabama

June Term, 1852

ERROR to the Circuit Court of Mobile.

Tried before the Hon. JOHN BRAGG.

JOHN A. CAMPBELL, for plaintiff in error:

1. The secondary evidence of the existence and contents of the power of attorney from Kennedy to Duval was inadmissible. The law presumes the power to have been retained by Garrow, or to have passed to Duval, the purchaser. Inquiry should have been made of Duval's representatives, and the plaintiff should have sworn that he could not produce the deed. The power was not recorded. The vague recollections of a witness was very unsatisfactory testimony, which should not have been allowed, except as a matter of necessity. Garrow does not say he returned the deed to Kennedy. He merely presumes so, because he could not find it. The cases do not tolerate such laxity as appears here. 11 Ala. 239; 2 Ala. 144; 9 Porter, 40; 7 Peters, 99; 1 Porter, 229; 8 Porter, 529; 2 Ala., 58; 4 Ala., 458.

2. The deed from Duval to George Getz was not produced, but a copy merely. No inquiry was ever made for this deed of any one. The plaintiff did not swear that he could not produce it; nor was any diligence used to find it. The only fact proved concerning it was, that Getz had died in 1840, at Philadelphia, and that the person testifying did not know of any administration, and that there were no heirs. In all cases there had been efforts to get the original; inquiries for the deed, of parties who had it, or might be supposed to have it, whether in or out of the State. Here none was made. Cases cited above; 5 Peters, 233. In this case it was shown that the lot had been sold, but no inquiry was made of the vendee for the muniment of title.

3. In the record there is the statement of another deed introduced, upon the statement that the grantee resided beyond the State, and the attorney had written for it without having received an answer. The cases require a larger diligence than either of these instances indicate.

4. We objected to the certificates of acknowledgment upon the authority of the case, 5 Porter, 413; 13 Ala., 370-652.

5. We insist that the deed purported to be made by Garrow, as attorney, cannot be considered as the deed of Kennedy. The instrument is sealed by Garrow, and he acknowledges that he signed, sealed and delivered it. The deed is the deed of Garrow. 4 Hill, 351; 23 Wend., 435; 2 Cushing, 337; 5 Peters, 319; 13 Metcalf, 498. The cases on the other side are cases of executory contracts, where the rule is not applied in the strictness that is used in deeds of real property. The distinction is explained by the Supreme Court of the United States in the cases cited; or there were circumstances patent upon the deed to show that the seal employed was the seal of the principal. In this case Garrow names himself in the premises as a party to the instrument. He closes the deed ( cujus testimonium clause) thus: "In witness whereof the parties have hereunto set their hands and seals." Garrow signs and seals for himself; and this is fully shown by his acknowledgment, made contemporaneously, in which he describes the instrument as having been signed, sealed and delivered to Daniel Duval by him.

6. We insist the court erred in the interpretation it gave to the deed. The deed purports to be made for the "consideration of the sum, covenants hereinafter mentioned, reserved and contained, on the part of the said Daniel Duval, to be done and performed"--he grants and sells certain lots "for the sum of three hundred dollars, to be paid by the said Daniel Duval, his heirs, executors, administrators and assigns, to Joshua Kennedy, as soon as the Government of the United States shall have confirmed to the said Joshua Kennedy, or his heirs, the title to the said bargained lots of land: Provided, nevertheless, that it is the true intent and meaning of these presents and the parties hereto, that said Daniel Duval, his heirs and assigns, shall pay or cause to be paid to the said Joshua Kennedy, his heirs or assigns, the yearly interest of eight per cent. per annum until the covenants before mentioned are complied with. The interest to commence the first day of this present month of January." We contend that the deed is a conditional deed, and may be avoided by the non-payment of the purchase money and entry. In this case the heirs of Kennedy recovered the land, and may hold without any other act upon proof of the non-performance of the condition. The authorities are conclusive to show that these are suitable words to form a condition. 2 Thomas's Coke, 5-6; 5 Viner's Ab., 47; 3 Comyn., 86; 5 Serg. & R., 385; Crabb on Real Prop., § 2140; 2 Co. Litt., 112-3; 1 Shep. Touch., 121; 5 Mass., 320-324.

7. The charge of the court to the effect, that the Price claim being confirmed to J. K. and other representatives of Price, inured to the benefit of Duval, to the exclusion of J. K., was erroneous. In 1818, at the date of this deed, J. Kennedy at most had but an equitable title to one half of the lands. Six years afterwards he gets a legal title to his one half, as well as to that of Wm. E. Kennedy. His legal title thus acquired for one half was but for one half. The equity of the heirs of Wm. E. Kennedy, at least to the extent of one half, was superior to the title of Duval. Duval cannot have the benefit of the doctrine of estoppel, for any save the interest to which Joshua Kennedy was entitled. The trust in favor of Wm. E. Kennedy's heirs could not be defeated by the conveyance of 1818 to Duval; nor by the acquisition of the legal title by the act of confirmation. The confirmation enured to the benefit of him who had the best right to call for it. The best right to one half was in the heirs of Wm. E. Kennedy. Wm. E. Kennedy never disposed of his legal estate, except to Joshua Kennedy in trust. The doctrine of estoppel does not apply to this case. Joshua Kennedy, as trustee, cannot be held to estoppels to which he was liable individually. 13 John., 463-4; 8 Cowen, 543-565-587; 9 Cowen, 271.

8. The evidence of the verdict in ejectment, and the ground on which it was given, was inadmissible. It proceeded upon a matter of boundary, and the verdict was evidence of the line between the lands of J. Kennedy and Wm. E. Kennedy, as shown by the Mathews map.

9. The evidence of deeds made long after the deed to Duval, not calling for that deed, and while the property was in dispute, as evidence to construe and locate that deed, ought not to have been admitted. Such proof had no tendency to explain the Duval deed. Kennedy had lots for sale, and the grantees purchased lots he offered. His contract of sale and the deed he made contained no reference to Duval or to Duval's rights. The plaintiffs desired to raise the inference, because he had sold the rest of the land to others, and had made no sale of the lots claimed under the deed to Duval, that he had sold to Duval the particular land now claimed. Neither the fact of a sale, nor the location of the land in the instrument produced, could be properly shown by such testimony. There was no relation between these transactions. They occurred at long and distant intervals; were perfectly independent as to subject matter, parties, considerations, and the one transaction could not be legitimately explained by the others. This objection applies to the different deeds introduced, and a map of the square, as set forth in the bill of exceptions. The fact, that trespassers occupied those lands now claimed by Duval, would account for their not being sold; nor could any inference be drawn from the fact that Kennedy did not choose to make a different sale. It was shown in evidence that the Price title was not finally settled till 1837, and Kennedy died in 1838, and these lands were recovered in 1842. The dates of the deeds, &c., are taken from the record of the Kennedy case.

P. PHILLIPS, contra:

The deed was made January, 1819, and recorded the next month. It recites specifically the power of attorney which authorized it. The deed was more than thirty years old, possession had accompanied it, and this would of itself have been sufficient to presume the existence of the power. Doe, demise Farmer's Heirs, v. Eslava, 11 Ala. 1020; 1 Greenleaf on Ev. §149.

The evidence of the probable loss of the original was sufficient, especially when coupled with the evidence of the subscribing witness, Carpenter, that, in reference to this sale, Kennedy subsequently said, that "whatever Garrow had done was right."

Certified copy of deed from Duval to Getz, 7th May, 1820. Besides the lapse of time and the possession which followed the deed, proof was made that Getz died in Philadelphia, without any heirs or representatives in this State. Scott v. Rivers, 1 S & P. 22; Smith v. Armstead, 7 Ala. 702.

There was also produced, a mortgage from Getz to Duval for the premises, which, it is recited, are the same as is conveyed by Duval, 7th May, 1820, which mortgage was duly recorded; the proceedings on a bill of foreclosure, and the master's deed under the decree, all of which substantiate the existence of the deed. There was, therefore, no motive to withhold the original, and no suspicion rests upon this transaction; and the rule as to the quantum of evidence to let in secondary evidence, rests very much upon these considerations. Toulman v. Juzan, 9 Ala. 694.

The objection to the probate of this deed is, that it does not state the day and the year. But the acknowledgment is tested, "this day and year last within written," which refers to the date of the deed; and the probate is thus, by reference to the body of the deed, made complete. Bradford v. Dawson, 2 Ala. 207.

That the deed was sufficiently executed by the attorney, is abundantly apparent from the body of the deed and the probate. Robinson v. Mauldin, 11 Ala. 984; Varnum et al. v. Evans, 2 McMullen, 409; ...

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31 practice notes
  • 9 So.2d 891 (Ala. 1942), 1 Div. 156, Sisson v. Swift
    • United States
    • Supreme Court of Alabama
    • June 25, 1942
    ...v. Anderson, 10 Ala. 504; McGee v. Eastis, 5 Stew. & P. 426; Kennedy v. McCartney's Heirs, 4 Port. 141; Carter v. Doe ex dem. Chaudron, 21 Ala. 72, 91. * * * See, also, Threefoot v. Hillman, 130 Ala. 244, 255, 30 So. 513, 89 Am.St.Rep. 39. Estoppel is an equitable doctrine to accomplish......
  • 88 So. 135 (Ala. 1920), 1 Div. 127, McMillan v. Aiken
    • United States
    • Supreme Court of Alabama
    • November 18, 1920
    ...in question to the land south of Bayou Jessamine. Doe ex dem. Farmer's Heirs v. Eslava, 11 Ala. 1029; Carter v. Doe ex dem. Chaudron, 21 Ala. 72, 91. In the absence of proof of its execution, before a deed at least 30 years old is admissible in evidence as an ancient document, it must not o......
  • 108 S.W. 15 (Mo. 1908), Hubbard v. Swofford Brothers Dry Goods Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 26, 1908
    ...power of attorney to him, and not any title of his own. Hunter v. Miller, 6 B. Mon. 612; Webb v. Burke, 5 B. Mon. 54; Carter v. Doe, 21 Ala. 72; Magill v. Hinsdale, 6 Conn. 464; Distilling Co. v. Brant, 69 Ill. 658; Shanks v. Lancaster, 5 Gratt. 110; Martin v. Almond, 25 Mo. 313; Owen v. Sw......
  • 80 P. 336 (Ariz. 1905), Civ. 896, Costello v. Graham
    • United States
    • Supreme Court of Arizona
    • March 30, 1905
    ...the whole title estops the grantor and those claiming under him as to further assertion of the legal or equitable title. Carter v. Doe, 21 Ala. 72; Stanley v. Green, 12 Cal. 148; Allyn v. Schultz, 5 Ariz. 152, 48 P. 960; Campbell v. Shivers, 1 Ariz. 161, 25 P. OPINION [9 Ariz. 260] SLOAN, J......
  • Request a trial to view additional results
29 cases
  • 9 So.2d 891 (Ala. 1942), 1 Div. 156, Sisson v. Swift
    • United States
    • Supreme Court of Alabama
    • June 25, 1942
    ...v. Anderson, 10 Ala. 504; McGee v. Eastis, 5 Stew. & P. 426; Kennedy v. McCartney's Heirs, 4 Port. 141; Carter v. Doe ex dem. Chaudron, 21 Ala. 72, 91. * * * See, also, Threefoot v. Hillman, 130 Ala. 244, 255, 30 So. 513, 89 Am.St.Rep. 39. Estoppel is an equitable doctrine to accomplish......
  • 88 So. 135 (Ala. 1920), 1 Div. 127, McMillan v. Aiken
    • United States
    • Supreme Court of Alabama
    • November 18, 1920
    ...in question to the land south of Bayou Jessamine. Doe ex dem. Farmer's Heirs v. Eslava, 11 Ala. 1029; Carter v. Doe ex dem. Chaudron, 21 Ala. 72, 91. In the absence of proof of its execution, before a deed at least 30 years old is admissible in evidence as an ancient document, it must not o......
  • 108 S.W. 15 (Mo. 1908), Hubbard v. Swofford Brothers Dry Goods Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 26, 1908
    ...power of attorney to him, and not any title of his own. Hunter v. Miller, 6 B. Mon. 612; Webb v. Burke, 5 B. Mon. 54; Carter v. Doe, 21 Ala. 72; Magill v. Hinsdale, 6 Conn. 464; Distilling Co. v. Brant, 69 Ill. 658; Shanks v. Lancaster, 5 Gratt. 110; Martin v. Almond, 25 Mo. 313; Owen v. Sw......
  • 80 P. 336 (Ariz. 1905), Civ. 896, Costello v. Graham
    • United States
    • Supreme Court of Arizona
    • March 30, 1905
    ...the whole title estops the grantor and those claiming under him as to further assertion of the legal or equitable title. Carter v. Doe, 21 Ala. 72; Stanley v. Green, 12 Cal. 148; Allyn v. Schultz, 5 Ariz. 152, 48 P. 960; Campbell v. Shivers, 1 Ariz. 161, 25 P. OPINION [9 Ariz. 260] SLOAN, J......
  • Request a trial to view additional results

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