Elston v. Comer

• Decision Date: 13 January 1896
• Citation: Elston v. Comer, 108 Ala. 76, 19 So. 324 (Ala. 1896)
• Parties: ELSTON ET AL. v. COMER.
• Court: Alabama Supreme Court

19 So. 324

108 Ala. 76

ELSTON ET AL. v. COMER.

Supreme Court of Alabama

January 13, 1896

Appeal from city court of Anniston; James W. Lapsley, Judge.

Ejectment by Parmelia Comer against Alex.Elston and others.From a judgment for plaintiff, defendants appeal.Affirmed.

Parmelia Comer, the appellee, brought the present statutory action of ejectment to recover certain lands described in the complaint.The suit was originally instituted against Alex.Elston, a tenant in possession; and C. N. Towns and Mary Towns were admitted, on motion of defendant, as landlord.The only plea filed was that of the general issue.On the trial of the case, as is shown by the bill of exceptions, the plaintiff testified that she had been in possession of the land sued for since 1862; that her father gave the land to her.And she offered in evidence the deed from her father to her, under which she held the land.This deed was signed by Abraham Towns and Malinda Towns by making their mark, and was executed in the presence of two subscribing witnesses.The plaintiff further testified that her father, Abraham Towns(the plaintiff having afterwards married J. T. Comer), had been dead for more than 20 years, and that the two subscribing witnesses were dead; that she knew both the subscribing witnesses and their handwriting, and that the signatures of them were in their genuine handwriting respectively; that she saw the deed written and executed, and that her father sent it to Jacksonville to be recorded during the late war; and that in 1890she recovered the deed after it was recorded, and after it was placed with the records of the probate office at Jacksonville, where it was supposed to be burned, with the other records therein during the war.The defendants objected to the introduction of this deed in evidence, and moved to exclude it, because there was no evidence that it was ever delivered to plaintiff, and because plaintiff's testimony shows that she never got possession of said deed until 1890,-long after the death of the grantors therein.The court overruled this objection and motion, and the defendants duly excepted to this ruling of the court.The defendants, as a defense to the action, relied upon a conveyance of the lands sued for in the deed executed by Parmelia Comer and her husband, J. T. Comer, in May, 1890.The defendants introduced testimony tending to show that the consideration of the conveyance was a debt or debts for which Parmelia Comer's estate was liable under section 2711 of the Code of 1876.These facts are sufficiently stated in the opinion.The plaintiff, in rebuttal, introduced an agreement signed by C. N. Towns and Mary Towns, which plaintiff's evidence tended to show was executed contemporaneously with a deed of conveyance to C. N. Towns and Mary Towns, and was a part of the same transaction in which said deed was made.This agreement is copied in the opinion.The other facts of the case are sufficiently stated in the opinion.The cause was tried by the court without the intervention of a jury and upon the hearing of the evidence the court rendered judgment for the plaintiff.The defendants appeal, and assign as error the judgment rendered, and the several rulings of the trial court to which exceptions are reserved.

Matthews & Whiteside, for appellants.

Savage & Coleman, for appellee.

McCLELLAN J.

Taking the evidence of the plaintiff on the question of the delivery of the deed by her father to her to show no more than that after due signature and attestation of the paper, it was filed by the grantor in the probate office for record,-and it certainly shows this much,-that constituted a legal and efficacious delivery, completing the execution of the deed.Elsberry v. Boykin,65 Ala. 336.

We find from the evidence upon which the judge of the city court heard this cause without a jury that J. T. Comer joined with his wife, Parmelia, in the execution of the deed to C. N. and Mary Towns in the manner essential to the alienation of a wife's separate estate, and that this deed was duly attested by two witnesses, as the statute requires.It is also clear upon the testimony, we think, that this deed did not evidence the whole of the transaction which at the time of its execution transpired between the parties, but, to the contrary, that as a part of the same transaction, and covered by the previous negotiations and understanding, as a result of and under which the deed was executed, the grantees therein executed the instrument adduced in evidence by the plaintiff below, which must therefore be taken as a part of the deed, as though it were physically incorporated therewith, and which is in the following language: "This agreement, entered into between C. N. and Miss Mary Towns, of the first part, and J. T. and Parmelia Comer, of the second part, witnesseth, that in consideration of the sum of $657.70, due the party of the first part, the party of the second part have deeded to the party of the first part one hundred and five acres [of land], more or less, upon the consideration that they, the party of the second part, are to hold...