Barksdale v. Bullington

• Decision Date: 14 October 1915
• Docket Number: 860
• Parties: BARKSDALE v. BULLINGTON.
• Court: Alabama Supreme Court

69 So. 891

194 Ala. 624

BARKSDALE v. BULLINGTON.

No. 860

Supreme Court of Alabama

October 14, 1915

Appeal from Circuit Court, Limestone County; Robert C. Brickell Judge.

Detinue by Fletcher Barksdale against Mrs. Ida Bullington for a mule together with the use and hire thereof. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Transferred from the Court of Appeals under section 6, Act April 18, 1911 (Laws 1911, p. 449).

The plea was non detinet. The description of the mule contained in the complaint was one black mare mule named Mat, about eight years old in 1914. It appears from the evidence that plaintiff wrote the name of the mortgagee, L.D. Calhan, under the following circumstances: Plaintiff went to the office of Capt. Sowell with the mortgagee, having previously having had the mortgage prepared, and when he arrived he ascertained that the mortgagee could not sign his name, and he requested Capt. Sowell to write it, and that plaintiff then, at the suggestion of Capt. Sowell, wrote the mortgagee's name the mortgagee holding the pen while the mark was made, the mortgage having been previously read to Calhan. The note and mortgage was then offered in evidence, and is as follows:

"Athens, Ala., Feb. 21, 1914.

"On or before Nov. 1, 1914, I promise to pay Fletcher Barksdale or bearer the sum of $400, value received. [Then follows the usual exemption clause.]

his

"L.D.X Calhan.

mark

"Witness: Ben M. Sowell.

"And, in addition to the above note, I hereby grant, sell, bargain, and convey to the said Fletcher Barksdale, for the purpose of better securing said advance or debt, the following property, the title to which I guarantee to be in me, to wit, one black mare mule, about eight years old, named Mat [and other property not sued for]."

Then follow the usual provisions as to the mortgage being void in case of the payment of the note, and the mortgage is signed as is the note, and under the same circumstances.

James G. Rankin, of Athens, for appellant.

Sanders & Thach, of Athens, for appellee.

THOMAS J.

This was a suit by Fletcher Barksdale, appellant, against Mrs. Ida Bullington, appellee, in detinue, for a mule specifically described, to which the defendant in the court below pleaded non detinet. The plaintiff based his claim to the property sued for on a note and mortgage, which the reporter will set out in the statement of facts.

As preliminary to offering the mortgage in evidence, it was shown that the mortgagor, L.D. Calahant, could not write his name, and that his name was written to the note and mortgage by Fletcher Barksdale, plaintiff, and payee in the mortgage; that the mortgagor made his mark to the signature by holding the pen while the mark was being made, the payee holding and guiding the pen; that this was done in the presence of the subscribing witness, B.M. Sowell, who wrote his name on the note and mortgage as an attesting witness to the signature thereto; that the mortgagor was in the possession of the property sued for at the time of the execution and delivery of the mortgage to the plaintiff.

The attesting witness to the mortgage, as a witness in the detinue suit, stated that it was his name that was signed to the mortgage as witnessing the signature of L.D. Calahan; that he did not remember whether Calahan executed it in his presence or not; that "he made his mark to it or acknowledged his signature" before witness. Witness identified the mortgagor as the party who appeared and made his mark or acknowledgment of his signature to the mortgage. Witness did not remember "who wrote the name L.D. Calahan" to the note and mortgage, did not remember whether he "saw Calahan sign his name," was "not positive whether he signed it or made his mark," was "not positive that I [witness] made the mark and he touched the pen. I didn't read the paper over to Calahan. I just simply signed my name on it. Mr. Calahan's name was on it when they came in the office. I don't remember whether or not the mark was there when they came in the office." The attesting witness is positive only that the mortgagor came to his office with the mortgage, and that witness signed his name to the mortgage as attesting witness, and that the mortgagor either signed the instrument in his presence or acknowledged that he had signed it in his presence.

The only persons present were the mortgagor, the mortgagee, and witness Sowell.

Plaintiff then offered to introduce the mortgage in evidence, to which defendant objected, on the grounds: (1) That the paper "shows on its face that Mr. Calahan did not sign the mortgage"; (2) that the execution of the instrument had not been proven; (3) that it had not been shown that the instrument was legally executed. The court sustained the objections and refused to allow the introduction of the instrument as evidence. Plaintiff moved for and was granted a nonsuit with bill of exceptions.

The fact that the signature to the note and mortgage was "Calhan," and not "Calahan," does not invalidate the execution of the instrument, if it was so executed by "Calahan," and he treated such signature as his own. This was a question for the jury--the identifying of the signature of the maker, the owner of the property in question at the time of the execution of the mortgage.

A person is said to "sign" a document when he writes or marks thereon something in evidence or token of his intention to be bound by its contents. Any mark is sufficient if it shows an intention to be bound by the document. Board of Trustees v. Campbell, 48 La.Ann. 1543, 21 So. 184; Knox Estate, 131 Pa. 220, 18 A. 1021, 6 L.R.A. 353, 17 Am.St.Rep. 798; Mills v. Howland, 2 N.D. 30, 49 N.W. 413; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L.R.A. 102; Plate's Estate, 148 Pa. 55-57, 23 A. 1038, 33 Am.St.Rep. 805; 36 Enc. of Law & Pro., pp. 446, 448. Completeness is not requisite. In Palmer v. Stephens, 1 Denio (N.Y.) 478, Sanborn v. Flagler, 9 Allen (Mass.) 474, and Salmon Falls Co. v. Goddard, 14 How. (U.S.) 446, 14 L.Ed. 493, the initials were held to be a signature; in Knox's Estate, supra, the first name was so held; in Williamson v. Johnson, 1 Barn. & Cress. 146, in Main v. Ryder, 84 Pa. 217, and in Carlisle v. People's Bank, 122 Ala. 446, 26 So. 115, a fictitious name was so held; and in Brown v. Bank, 6 Hill (N.Y.) 443, 41 Am.Dec. 755, an indorsement in figures was held a sufficient signing.

A mortgage is properly executed where the grantee wrote the name of the grantor, who held the pen while his mark was being made, with the intention on the part of the latter to execute the instrument, if the signing or signature is attested by a witness who could and did write his name as an attesting witness. Mash v. Daniel & Co., 105 Ala. 393, 18 So. 8; Johnson v. Davis, 95 Ala. 293, 10 So. 911; Penton v. Williams, 163 Ala. 603, 51 So. 35; McGowan v. Collins, 154 Ala. 299, 46 So. 228.

If the decision in Mash v. Daniel & Co., supra, is correct, the mortgage was legally executed. Counsel for appellee says that this case is not in harmony with the later decisions of this court, and submits, in opposition thereto, several authorities which we will now consider. In Penton v. Williams, supra, it was held that a note conraining a waiver of exemptions (required by statute to be in writing, and subscribed by the party making the same [Code, § 4232]), the name of the maker of which, and the mark, had been signed and made by the payee, but without subscribing witness, was not subscribed by the party making the same (Code, § 1), and that it was not admissible in evidence.

In Carlisle et al. v. Campbell, 76 Ala. 247, it was held that the payee could not become the agent of the maker to sign his name to the instrument, there being no attesting witness. The principle of this holding is distinguished from that involved in Johnson v. Davis, supra, where there was a witness as required by the statute. Code, § 4288; Houston v. State, 114 Ala. 15, 21 So. 813.

In Johnson v. Davis, supra, Mr. Justice McClellan said of Carlisle v. Campbell, supra:

"The authorities cited *** all refer to instances where the obligee had acted as agent of the obligor in the execution of the instrument; the latter being able to write."

In McGowan v. Collins, supra, it was held that section 1 of the Code has no application to the execution of promissory notes, and that a note executed by an illiterate promisor, by mark, is sufficient, and need not be attested, although his name is written by the payee of the note.

In Levy v. Bloch, 88 Ala. 290, 6 So. 833, it was held that, where the maker's name is signed to a promissory note, by the payee, with the words added "his mark," but no mark is made, and there is no attesting witness, a recovery cannot be had on it if a proper plea of non est factum is interposed.

In the case at bar the signature was completed by the addition of the mark by the maker, together with the requisite attestation to the signature by a witness who signed his own name as such.

The execution of the instrument in Wright v. Forgy, 126 Ala. 389, 392, 28 So. 198, 199, was upheld because, as...