Frederick v. Wilcox

• Decision Date: 29 October 1898
• Citation: 24 So. 582,119 Ala. 355
• Parties: FREDERICK v. WILCOX.
• Court: Alabama Supreme Court

24 So. 582

119 Ala. 355

FREDERICK v. WILCOX.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Bibb county; John Moore, Judge.

This was a statutory action of ejectment, brought by Lewis Frederick against James Wilcox, as tenant in possession.

The cause was tried by the court upon issue joined on the plea of the general issue. The plaintiff introduced in evidence a deed from B. P. McGraw and his wife, conveying to the plaintiff the land sued for. This deed was executed on October 3, 1891. The plaintiff's evidence showed that after the execution of this deed, he entered into possession and occupied the land purchased, as his homestead.

The defendant offered to read in evidence a mortgage which was executed by the plaintiff and his wife to the defendant James Wilcox, on January 4, 1891, which mortgage conveyed the land involved in this suit. The plaintiff objected to the introduction in evidence of this mortgage, upon the following grounds: (1) Because the names of Lewis Frederick and A. E Frederick, his wife, nowhere appear in the body of said mortgage, and only appear by their signatures at the foot thereof. (2) In the certificate of acknowledgment by the wife before a justice of the peace, Lewis Frederick's name does not appear. (3) In their acknowledgment of the conveyance, the justice certified "that Simpson L Frederick and his wife, whose names are signed to the foregoing conveyance," etc., and that the wife's name does not appear in said certificate. The facts relating to these grounds of objection are sufficiently stated in the opinion. The court overruled the objection, allowed the mortgage to be introduced in evidence, and to this ruling the plaintiff duly excepted, and took a nonsuit with leave to file a bill of exceptions. There was judgment rendered for the defendant. The plaintiff appeals, and assigns as error the rulings of the trial court upon the evidence. Affirmed.

Cato D Glover, for appellant.

Logan & Vande Graaff, for appellee.

HARALSON J.

The mortgage in this case admitted in evidence against plaintiff's objection, does not contain the names of the husband and wife as grantors in the body of the instrument but it is signed by each of them at the conclusion under its signing clause. Instead of the names of the grantors being set out, the mortgage, in recital of consideration, states "that the undersigned is justly indebted to James Wilcox in the sum of two hundred dollars," etc., "and for the purpose and consideration of securing the same, the undersigned have this day bargained, sold and conveyed," etc., and concludes, "Witness our hands and seals," etc. This was quite sufficient to distinguish the grantors, and make it appear that each signed it, as much so as if their names, as they respectively appear at the place of signing, had been each...