Blount v. Blount

• Court: Alabama Supreme Court
• Writing for the Court: MAYFIELD, J. SIMPSON, J.
• Citation: Blount v. Blount, 158 Ala. 242, 48 So. 581 (Ala. 1909)
• Decision Date: 05 February 1909
• Parties: BLOUNT v. BLOUNT ET AL.

48 So. 581

158 Ala. 242

BLOUNT v. BLOUNT ET AL.

Supreme Court of Alabama

February 5, 1909

Appeal from City Court of Gadsden; John H. Disque, Judge.

Suit by Joseph G. Blount against Lily T. Blount and others to cancel and remove a deed as cloud on title. From a judgment for defendants complainant appeals. Reversed and remanded.

The facts made by the case are that Gus Blount, the husband of Lily Blount and the father of the other respondents, filed for record and had recorded in the probate office of Etowah county a deed to himself from Joseph G. Blount, conveying a lot of land to said Gus Blount, reserving a life interest in Joseph G. Blount. Gus Blount died, and Joseph G. Blount filed this bill to cancel said deed and expunge it from the record alleging that he never executed such a deed or acknowledged the same. The deed appeared to be acknowledged; but the officer before whom the acknowledgment was alleged to have been taken was also dead. The chancellor declined to permit Joseph G. Blount to testify that he had no such transaction with his son, Gus Blount, and that he never executed or acknowledged the deed, on the theory that it was a transaction with a deceased person affecting his estate, and he denied the relief prayed.

McClellan and Simpson, JJ., dissenting.

Knox Acker & Blackmon, for appellant.

Dortch Martin & Allen and Boykin & Brindley, for appellees.

MAYFIELD J.

The serious question involved in this appeal is this: There is found on the records of the probate office--which is by law made the registry of deeds--a record of what purports on its face to be a deed by A. to B. This record on its face shows the deed to have been properly signed by A., attested by C and acknowledged by A. before a notary, E., and filed in the probate office for record four days after it purported to have been executed. That which purported to be the original deed is lost, and the grantee is dead. In a suit between the alleged grantor and the heirs, distributees, and personal representatives of B., can A., as a witness for himself, deny that he signed this deed, or that he acknowledged that he signed it, before E., the notary? In such case the grantor is clearly a competent witness, unless he and this evidence fall within the exception of section 4007 (1794) of the Code of 1907, which exception reads as follows:

"4007. Competency of Parties as Affected by Interest.--In civil suits and proceedings, there must be no exclusion of any witness because he is a party, or interested in the issue tried, except that no person having a pecuniary interest in the result of the suit or proceeding shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding," etc.

If the proposed evidence relates to "a transaction with or statement by" B., then it is clearly not admissible. If the evidence does not relate to any such transaction or conversation with B., then it is admissible. So the question must be determined by the fact whether or not the denial by the grantor of the execution of a deed necessarily involves a transaction with the grantee. The writer is of the opinion that it does not. It may or it may not, depending upon the particular circumstances of the case. The grantor may make a deed to the grantee without the knowledge or consent of the grantee, and against his will. The grantor to a deed is a necessary party to its execution, but the grantee is not. The grantee, therefore, cannot, without the aid or consent of the grantor, make him a party to a transaction involving the execution of a deed. If the grantee should forge the name of the grantor to the deed, and forge the attestation and acknowledgment thereto, he cannot make it a transaction with the grantor by filing it for record and having it recorded without the knowledge and consent of the grantor. Nor would the fact that such a deed was thus executed and recorded by third parties, with or without the consent of the grantee, make it a transaction with the purported grantor. A transaction between two parties necessarily implies action, consent, knowledge, or acquiescence on the part of both. Hence, if a grantor never in truth and in fact executed or attempted to execute an alleged deed to a given grantee, he is not and cannot be a party to the transaction, which on its face purports to be the execution by him of a deed to the named grantee.

The grantee, third parties, nor all combined, cannot, without his act, word, deed, knowledge, consent, or acquiescence, make such purported grantor a party to a transaction as to which he had nothing to do and to which he was not a party. He is the only party or individual who can make himself a party thereto; and to deny to him the right to testify that he was not a party to the transaction would be to put it within the power of a grantee or third parties to absolutely acquire all his property without his knowledge or consent. We do not believe that this is the law. Of course, if he did, in fact and in truth, execute the deed, and the grantee dies, and in fact there had been a transaction between them, then under the statute he is incompetent to testify as to the transaction involved in the execution of the deed; but if he in fact made no deed at all, and had no knowledge of it, he was not, and could not be made, a party to a transaction which merely on its face imports a transaction between him and a deceased person. It therefore follows that if it be conceded, or conclusively proven, that a grantor did in fact execute a deed to the grantee, and that it constituted a transaction between the two, and the grantee is dead, the grantor is incompetent to testify as to such transaction.

The grantor in this case does not concede that he executed the deed, but denies it, if the court will let him do so; and the evidence does not conclusively prove it. His testimony is therefore competent to determine the question vel non as to the transaction between the grantor and grantee. If the court or jury should from all the evidence find that the grantor was a party to the deed or transaction, then he is an incompetent witness; but he is competent until this is conclusively shown, or it is conceded that he was a party to the transaction in question. The other party to the suit cannot render him incompetent, by testifying that he was a party to a transaction with a deceased person through whom they claim, or by showing a chain of circumstances which tend to prove he was a party to such transaction.

Filing for record a paper purporting on its face to be a deed, and recording it, makes such record or a certified copy thereof presumptive evidence of the execution of the alleged or purported deed, and is prima facie proof, in such case, as between the alleged parties thereto, of the recitals in such deed. This is a mere prima facie presumption, which the statute and the law indulge, and is not a conclusive presumption. It is open and proper for either party to dispute it, or to show that it is a forgery or a fraud, or that it is void for any sufficient reason. It is not like a judgment in a suit between the parties as to that matter. For example, if the purported deed in question here, which was filed for record and recorded, was, as a matter of fact, a forgery by the grantee or any other party, filing and recording it could not make it valid. It may in certain cases make the record, or a certified copy thereof, presumptive evidence of the recitals therein; but it is not conclusive, and does not make a forgery a valid conveyance, though it might aid the court or jury in finding the instrument in question to have been a valid conveyance. However, it is not conclusive on judge or jury--at least, not more so than the purported deed itself would be, if its execution were proven.

We are not now writing as to the probative force of such proof of execution, filing, and recording of the deed, but as to the conclusiveness of such matters to show a transaction between the grantor and grantee. We hold that the grantor in such document, no matter what its nature, character, or recitals, is not precluded, by such proof, such filing, and such recording, from showing that his alleged signature thereto and his acknowledgment thereto are forgeries and frauds, perpetrated without his knowledge or consent. If this be not true, one man can acquire, for his estate after his death, all the property of another, without the knowledge or consent of such other, and yet do it by due process of law. We say the law is not, and ought not to be, such as to allow such proceedings or results.

We think the construction we thus place upon this statute is that which was intended by the Legislature when the statute was enacted, and that it is perfectly consistent with all the decisions of this court dealing with its construction. The statute referred to above removes all objections to the competency of witnesses in civil cases, on account of interest or of being parties to the record, except as to transactions or conversations with deceased persons and as to some other matters not necessary here to mention. Calera etc., Co. v. Brinkerhoff, 87 Ala. 422, 6 So. 295. The effect of the exception in the statute referred to is not to render parties or witnesses incompetent to testify generally in the given case, but only incompetent to testify upon the certain subjects specified. O'Neal v. Reynolds, 42 Ala. 197. Testimony of a party that he never gave any other note to a deceased person, whose estate is interested in the result of the suit or trial, does not involve a transaction with such deceased person, and is not within the exception of the...