Ford v. Fauche
| Decision Date | 22 June 1961 |
| Docket Number | 4 Div. 54 |
| Citation | 131 So.2d 852,272 Ala. 348 |
| Parties | Jewell FORD et al. v. Charles FAUCHE. |
| Court | Alabama Supreme Court |
J. O. Sentell, Jr., Montgomery, for appellants.
Ben H. Lightfoot, Luverne, for appellee.
This is an appeal from a decree of the equity court overruling the demurrer of the respondents to the original bill of complaint as a whole and to each and every aspect thereof.
The allegations of the bill of complaint which was filed June 16, 1960, in substance, show the following. Complainant Charles Fauche, also known as Larry Foshee (appellee), is the grandson of Julian C. Ford, deceased, and Gussie Ford, deceased, and is the sole surviving heir of Gussie Ford, deceased. Prior to January 16, 1899, Gussie Ford was the owner in fee simple of the lands involved in this suit. On January 16, 1899, Julian C. Ford procured a deed to the aforesaid lands along with other lands, purporting to bear the signature of his wife Gussie Ford and her mother Martha Bradley. A copy of the deed is attached to the bill of complaint, made a part thereof and marked Exhibit 'A' for identification. This deed shows the following.
1. The deed recites a consideration of $6,835.50, the receipt of which is acknowledged by Martha Bradley and Gussie Ford.
2. The deed contains the usual warranties.
3. The deed purports to be signed, sealed and delivered in the presence of E. B. Dorman, J. P., and W. J. Warner.
4. The certificate of general acknowledgment purports to have been signed by E. B. Dorman, a Justice of the Peace of Crenshaw County, Alabama, on January 16, 1899.
5. A certificate of separate acknowledgment purports to have been signed by E. B. Dorman, a Justice of the Peace of Crenshaw County, Alabama, on January 16, 1899.
The deed purports to have been filed for record in the Probate Court of Crenshaw County, Alabama, on January 28, 1899.
The allegations of the bill further show that Gussie Ford did not sign the aforesaid deed conveying the property to her husband and that the purported signature on the deed is not the signature of Gussie Ford, that the purported execution of the aforesaid deed was not the signature of Gussie Ford but was done by a person or persons unknown to him and was a fraud upon her rights and privileges.
The bill further avers that should the court find that Gussie Ford acquiesced in the fraudulent conveyance in that the signature on the deed was the signature of Gussie Ford, deceased, the acquiescence and signature was involuntary on her part and was a result of fear, duress, compulsion and undue influence exercised over her by her husband.
The complainant further avers that his delay in bringing this action was due to the fact that Julian E. Ford, the surviving husband of Gussie Ford, held a life estate in the lands and that he died in January, 1960.
The respondent, Jewell Ford (appellant), is the widow of Julian C. Ford by a marriage after the death of Gussie Ford and the respondents Sidney Ford Tatom and Mary Exa Ford (appellants), are the children of the marriage of Julian C. Ford and Jewell Ford.
All of the parties to the suit are over the age of twenty-one years.
It is further alleged that Julian C. Ford bequeathed the lands described to the respondents by will which was probated in Crenshaw County, Alabama, in January, 1960. A copy of the will is attached to the bill of complaint, made a part thereof and marked Exhibit B for identification.
The will, which devised the lands described in paragraph two of the complaint, was made by Julian C. Ford on August 21, 1950. Julian C. Ford devised in Item Six of the will approximately 263 acres of land to Mary Exa Ford and Sidney Ford, subject to the right of his son, Leeman Ford, to live on and cultivate the land without payment of rent. The will makes no other reference to the son Leeman Ford.
Julian C. Ford devised 240 acres of land absolutely and unconditionally to the complainant in Item Seven of the will.
The bill further alleges that there is no suit pending to test the title to the lands and the complainant offers to do equity.
The bill of complaint prays in substance (1) that the deed be set aside and declared null and void, (2) that the will of Julian C. Ford insofar as it relates to the lands described in the bill be declared null and void, (3) that complaint as the sole surviving heir of Gussie Ford, deceased, be declared the owner of the lands as against the respondents and (4) for general relief.
I. From the allegations of the bill it appears that the only basis of the claim of the appellee to the lands involved in this suit is the fact that he is the sole heir of Gussie Ford, deceased. See Lansden v. Bone, 90 Ala. 446, 8 So. 65. As the sole heir of Gussie Ford, deceased, the complainant (appellee) seeks to set aside the deed made by Gussie Ford to her husband, Julian Ford, which purports to have been executed on January 16, 1899. The complainant seeks to set aside this deed on two grounds, (1) that the deed purporting to be executed by Gussie Ford was not in fact executed by her and (2) that if the deed was executed by Gussie Ford it was executed as the result of duress on the part of Julian Ford, her husband.
The demurrer of the defendants to the bill takes the position, among others, that the complainant is barred from the relief which he seeks by prescription.
As pointed out it is alleged that the deed was not signed by Gussie Ford but by some one not known to the complainant and was a fraud upon her rights and privileges. However, the execution of the deed was duly acknowledged before an officer authorized to take such acknowledgment. When the purported grantor duly acknowledges the execution of a deed before an officer authorized to take such acknowledgment, the execution of the deed is valid even though the grantor did not actually sign the deed. Lewis v. Watson, 98 Ala. 479, 13 So. 570, 22 L.R.A. 297; McClendon v. Doe, 122 Ala. 384, 25 So. 30; Loyd v. Oates, 143 Ala. 231, 38 So. 1022; Weldon v. Bates, 229 Ala. 168, 155 So. 560. Furthermore when a certifying officer acquires jurisdiction by having the grantor and the instrument before him, the resulting certificate of acknowledgment is conclusive of the facts therein stated in the absence of fraud or duress. Weldon v. Bates, supra; Woolen v. Taylor, 249 Ala. 455, 31 So.2d 320. An averment that the purported grantor did not sign the conveyance is insufficient to impeach the regularity of a certificate of acknowledgment appearing on a conveyance. Woolen v. Taylor, supra; Montgomery v. Parker Bank & Trust Co., 256 Ala. 20, 53 So.2d 566.
There is no allegation that the deed was a forgery and there is no allegation impeaching the certificate of the acknowledgment. Construing the allegations of the bill against the pleader, the bill shows that the deed was executed and acknowledged more than twenty years before the filing of this suit. The date of the death of Gussie Ford is not alleged but the children of Julian Ford, the surviving husband of Gussie Ford, and Jewell Ford, the second wife of ...
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...Vizard v. Robinson, 181 Ala. 349, 353, 61 So. 959; Morris v. Bank of Attalla, 153 Ala. 352, 357, 45 So. 219. In Ford v. Fauche, 272 Ala. 348, 351, 131 So.2d 852, 854, it is '* * * (W)hen a certifying officer acquires jurisdiction by having the grantor and the instrument before him, the resu......
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