Henderson v. Kirkland

• Decision Date: 14 June 1900
• Citation: Henderson v. Kirkland, 127 Ala. 185, 28 So. 674 (Ala. 1900)
• Parties: HENDERSON ET AL. v. KIRKLAND ET AL.
• Court: Alabama Supreme Court

28 So. 674

127 Ala. 185

HENDERSON ET AL. v. KIRKLAND ET AL.

Supreme Court of Alabama

June 14, 1900

Appeal from chancery court, Dale county; W. L. Parks, Chancellor.

Suit by J. E. and W. E. Henderson against J. L. V. Kirkland and another.From a decree in favor of defendants, complainants appeal.Affirmed.

The bill averred that the defendants had executed a mortgage to the complainants to secure the payment of an indebtedness which they owed the complainants; that in the execution of this mortgage each of the defendants being unable to write did sign the same by making their mark, and that there was but one attesting witness.It was then averred that default had been made in the payment of the mortgage debt, and that under the provisions of the mortgage it should be foreclosed.

The prayer of the bill was that inasmuch as there was but one attesting witness to the signatures of the mortgagors by making their mark, the mortgage was inoperative to convey the legal title; that therefore the instrument should be decreed an agreement or contract to convey, and as such contract should be specifically enforced.To this billthe defendants demurred upon the following grounds: "Said bill and the mortgage upon which complainants rely for relief show upon their faces that the said mortgage is absolutely void under the statute and is not an agreement to convey which can be enforced."

On the submission of the cause on the demurrers, the chancellor rendered a decree sustaining it.From this decree the complainants appeal, and assign the rendition thereof as error.

Sallie & Kirkland, for appellants.

A. T Borders, for appellees.

HARALSON J.

Neither of the defendants, who are the mortgagors in the mortgage sought to be specifically enforced as a contract to convey title, and foreclosed, could write their names.Their names were written for them by John Adams, with the words "his" and "her mark" written over each name, with a cross mark between the words "his" and "her mark," as they appear.The mortgage was attested by said John Adams alone, whose name appears signed thereto as a witness.

The Code (section 982) requires, that conveyances for the alienation of lands "must be signed at their foot by the contracting party, or his agent having a written authority or, if he is not able to sign his name, then his name must be written for him, with the words 'his mark' written against the same, or over it; the execution of such conveyance must be attested by one witness, or, when the party cannot write, by two witnesses who are able to write and who must write their names as witnesses."The method of conveyance here prescribed is exclusive, the rule being that "when a statute limits a thing to be done in a particular manner, it includes in itself a negative; and the negative is, that it shall not be done otherwise.The limitation exists whenever the statute prescribes the particular manner in which the thing must be done."Bickley v. Keenan,60 Ala. 293;Hendon v. White,52 Ala. 597.It follows, that the mortgage from the defendants to the complainants,-signed by the defendant, J. L. V. Kirkland, who could not write, by his name being written for him by another, with the words "his mark" over or against the same, in the presence of but one witness,-was inoperative, and of no effect to convey the legal title.For that purpose, it was a nullity.The theory on which complainants propose to maintain their bill,...