Arrington v. Arrington

• Decision Date: 07 June 1899
• Citation: 122 Ala. 510,26 So. 152
• Parties: ARRINGTON ET AL. v. ARRINGTON ET AL.
• Court: Alabama Supreme Court

26 So. 152

122 Ala. 510

ARRINGTON ET AL. v. ARRINGTON ET AL.

Supreme Court of Alabama

June 7, 1899

Appeal from circuit court, Barbour county; A. T. Borders, Judge.

Action of ejectment by Robert Lee Arrington and others against Charles W. Arrington and others. The defendants pleaded the general issue. The plaintiffs claim title to the lands sued for under a deed executed by one E. M. King on January 1 1879, conveying to the plaintiffs the lands sued for. The plaintiffs were shown to be the illegitimate children of said E. M. King. The execution and attestation of this deed, and the circumstances of its delivery to the mother of the plaintiffs, are sufficiently stated in the opinion. After proving the execution of said deed and the circumstances of its delivery, the plaintiffs offered said deed in evidence. To the introduction of the deed in evidence the defendants objected on the ground that no delivery of said deed had been shown. The court sustained this objection, and refused to allow said deed to be introduced in evidence. The plaintiff duly excepted to this ruling of the court, and took a nonsuit, with bill of exceptions. From judgment in favor of the defendant the plaintiffs appeal, and assign as error the ruling of the court in refusing to allow the deed under which the plaintiff's claim title to be introduced in evidence. Reversed.

A. H Merrill, for appellants.

G. L Comer and Geo. W. Peach, for appellees.

TYSON J.

This was a statutory action of ejectment for the recovery of certain lands which the plaintiffs claim title to under a deed of gift from their reputed father. The single question raised in the trial court was whether the deed was delivered. It appears from the testimony that the plaintiffs at the date of the deed were infants of tender years, the eldest being about five years of age, residing with their mother; and the grantor, their reputed father, shortly atfer its date, handed it to their mother, they having no legally appointed guardian, in a sealed envelope, saying to her: "Here Fannie, take these papers, and, if I die before you do, look after them for the children; and, if you die before I do, I will look after them." The mother preserved the package, without opening it, until 1897, and when she did so for the first time learned or knew of the contents and the nature of the instrument or deed contained in it. King, the father, died in possession of the lands in 1881, about two years after the date of the deed. The deed has the names of two persons written in the place where the names of subscribing witnesses are usually placed and found upon such instruments, but the word "Attest" or "Witness" does not appear above or in conjunction with these names. Nor are there any other words appearing upon the deed showing the purpose of their signatures. No point, however, was made upon this in the court below, and the plaintiffs, without objection, were permitted to prove the genuineness of the signature of the grantor and of the two signatures of these persons as though the attesting words or clause were there, and those names were treated as though the persons had subscribed them as witnesses to the deed. But, had it been made as an objection to the deed, it would have availed nothing. At common law attesting witnesses to a deed were not essential to its validity as a conveyance of lands, and prior to the adoption of the statutes requiring them to be attested or acknowledged this rule prevailed in this state. Hendon v. White, 52 Ala. 597; Robertson v. Kennedy, 1 Stew. (Ala.) 245; Dillingham v. Brown, 38 ala. 311; Wiswall v. Ross, 4 Port. (Ala.) 321. The usual clause to denote that the witnesses sign as such is, "Signed, sealed, and delivered in the presence of" the witnesses writing their names thereunder. And it would seem that, if the parties chose to sign their names alone, and after delivery they then call witnesses before whom they acknowledge the deed, it is a good execution. 1 Devl. Deeds (2d Ed.) § 258, and notes 1, 2. The manifest object of requiring an attestation by subscribing witnesses is to enable the grantee to prove the execution by the grantor of the deed, and to show the circumstances attending the sealing and delivery. No formal words are requisite under the statute to be incorporated in the deed, or upon it, to show that the names subscribed are those of witnesses. Its language is: "The execution of such conveyance must be attested by one witness, or, when the party cannot write, by two witnesses who are able to write and must write their names as witnesses." Code 1896, § 982. True, they must write their names as witnesses upon the deed; but we cannot hold, if, from an examination of the instrument it clearly appears, as it does in this case, that the only purpose for which the names were written was to attest the signature of the grantor to the deed, that they are not witnesses, simply because of the failure to employ some word or words indicating the purpose for which their names were written. That this construction of the statute is correct, see Jones v. Hagler, 95 Ala. 529, 10 So. 345; Rogers v. Adams, 66 Ala. 600; Sharpe v. Orme, 61 Ala. 263; Carlisle v. Carlisle, 78 Ala. 544; and other cases of similar import, in which it was held that in cases of a defective acknowledgment the officer's signature to the attempted acknowledgment operates as a substitute for the attestation of a witness. And in the case of Jones v. Hagler the court, in giving the reason for this rule, said: "A proper attestation may be made by the mere signature of the witness. It is sufficient that the signature appears to be made for the purpose of attesting the execution of the conveyance." It is not controverted by appellant's counsel-and, indeed, it cannot be-that a delivery of the deed was essential to the validity of its execution, and it was only from its delivery it could take effect, and become an irrevocable...