Bley v. Lewis

• Decision Date: 07 November 1914
• Docket Number: 531
• Citation: 66 So. 454,188 Ala. 535
• Parties: BLEY et al. v. LEWIS.
• Court: Alabama Supreme Court

66 So. 454

188 Ala. 535

BLEY et al. v. LEWIS.

No. 531

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Marengo County; John T. Lackland, Judge.

Ejectment by Isidore Bley and others against Maggie M. Lewis. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

The exceptions to evidence and other facts sufficiently appear in the opinion. The following is charge 10 given for defendant:

(10) I charge you that if the mortgage when signed by defendant was to secure a past debt of the husband, although you further find that said mortgage was for a security for future advances, it is a void mortgage, and no act on the part of defendant can give life to it. A. If you believe from the evidence in this case that defendant signed the mortgage and note of date February 7, 1903, as security for the husband's debt, then it is a presumption of law that the payees of said note and mortgage knew that she executed the note and mortgage as surety, if you further find from the evidence in the case that the said note and mortgage was signed jointly by defendant and her husband.

The following charges were refused plaintiff:

X. If the jury are reasonably satisfied from the evidence that Maggie M. Lewis permitted her husband to buy goods from Mayer Bros., and to have same charged to her account, and to manage, control, and rent out her lands, and collect the rent, and the crops grown thereon, and dispose of the same and that with full knowledge of the same Maggie Lewis paid for the goods she bought and ratified her husband's acts as her agent, and that such acts and doings were committed for many years, and were ratified by Mrs. Lewis, then although goods, wares, and merchandise were actually delivered to Mr. Lewis, but upon the credit of Mrs. Lewis then a debt so contracted would constitute a debt of Maggie Lewis, and not of her husband.

Z. The court charges the jury that by the mortgage bearing date January 30, 1896, Mrs. Lewis constituted her husband her agent to buy goods from Mayer Bros., for her during said year, and if the said Lewis, acting under said authority, did buy goods from Mayer Bros., then such a debt would be the debt of Maggie Lewis, and not the debt of her husband.

Elmore & Herbert, of Demopolis, and Bestor & Young, of Mobile, for appellants.

J.M Miller, of Gadsden, for appellee.

McCLELLAN J.

This is an action in statutory ejectment. Isidore Bley, James F. Compton, and Benjamin F. Gregory are the plaintiffs (appellants); and Maggie M. Lewis is defendant (appellee). In the paper signed by the presiding judge as for a bill of exceptions on appeal to this court, this recital appears:

"The plaintiff offered in evidence a deed from Isidore Bley and B.F. Gregory conveying the undivided one-third interest in the land asked for dated December 1, 1910, filed for record December 14, 1910. (The clerk will here insert the above deed)."

With the evident purpose of complying with the direction given in the quoted recital of the bill of exceptions, the clerk of the circuit court of Marengo county, whose duty it was to prepare the transcript for appeal, inserted in the part of the transcript devoted to the bill of exceptions, and at the appropriate place therein, a deed corresponding in date of execution and in date of filing for record with the descriptive words and figures appearing in the quoted recital and according with the character of interest or title mentioned in that recital; but the deed so inserted, in copy, by the clerk, was one in which Isidore Bley was grantor and B.F. Gregory was grantee, and it described the land sued for in the complaint in this cause. Motion is now made by the appellee to strike the paper so inserted by the clerk; and this upon the notion that either the direction in the quoted recital is too uncertain in identification of the paper to be inserted, or the instrument in fact inserted by the clerk is not the paper called for in the quoted recital of the bill.

In our cases of Looney v. Bush, Minor, 413, Pearce v Clements, 73 Ala. 256, and Elliott v. Round Mountain C. & I. Co., 108 Ala. 640, 18 So. 689, the pertinent rule--written with great strictness, but no more so than the public importance of its subject exacts--is set down. It will not be departed from at this late day, nor will its effectiveness be impaired in practical administration. Mindful as we are of the rule for particular definiteness of identification in order to effect the lawful insertion in a bill of exceptions of a paper referred to and thus incorporated as a part thereof, we cannot find in the circumstances here involved such degree of uncertainty of identification as would permit the striking of the paper mentioned, to which action the appellee moves us. The rule, in such cases, is satisfied if the reference identifies the document in a way "to reasonably exclude a mistake with reference thereto." Here the paper inserted accords with the direction in the bill in respect of the date of execution and the date of filing for record. It is manifest that the word "and," appearing between the names in the recital, is a clerical...