Houston v. State
| Decision Date | 08 April 1897 |
| Citation | 21 So. 813,114 Ala. 15 |
| Parties | HOUSTON v. STATE. |
| Court | Alabama Supreme Court |
Appeal from county court, Sumter county; W. R. De Loach, Judge.
Joe Houston was indicted, tried, and convicted for selling or removing personal property upon which there was a valid lien or claim, and appeals. Reversed.
Upon the trial of the cause the state offered in evidence a mortgage, which was alleged to have been executed by the defendant, creating the lien or claim to the property the defendant was charged with having sold or removed. Against the objection of the defendant, the court allowed the state to introduce this mortgage in evidence.
Wm. C Fitts, Atty. Gen., for the State.
The appellant in this case was indicted and tried for selling or removing personal property covered by a lien or claim. Cr Code, § 3835. The lien upon the property the defendant was charged with having sold or removed was created by mortgage. On the trial of the cause the state offered this mortgage in evidence, and the first question presented is whether the execution of the mortgage was sufficiently proven to authorize its admission in evidence. The mortgage offered in evidence was signed by the defendant by his making his mark. This mortgage purported to be attested by two witnesses. One of these witnesses wrote his name as a witness, and the name of the other was written for him, followed by his mark. The mortgage was neither acknowledged nor probated. The attesting witness whose name was signed to the mortgage by making his mark was the one who testified as to the execution of the mortgage in question. At the common law it was not necessary that private writings should be attested, but this rule has been abrogated by statute. It was formerly unnecessary that mortgages of personal property should be in writing, and it has been expressly held in this state that written mortgages of personal property, which were signed by the mortgagor making his mark, and attested by two witnesses making their marks, was sufficiently valid to enable the mortgagee to base his claim to the property conveyed therein. This conclusion was rested upon the ground that a verbal mortgage of personal property was sufficient to pass the title to the mortgagee and that, therefore, a mortgage of personal property so executed as to be invalid, if a mortgage of land, was nevertheless valid as to personalty. Warehouse Co. v Lewis, 56 Ala. 514. By the act approved January 22, 1885 (Acts 1884-85, p. 93), which now constitutes section 1731 of the Code of 1886, it was provided that "a mortgage of personal property is not valid unless made in writing and subscribed by the mortgagor." The definition of "signature" or "subscription," as given by the first section of the Code, "includes mark when a person cannot write his name, his name being written near it and witnessed by a person who writes his own name as a witness." Under these statutory provisions a mortgage of personal property by one who is unable to write his name is "subscribed by the mortgagor" only when he has made his mark near his name subscribed for him, and this making of his mark has been witnessed by a person who can and does write "his own name as a witness." Without this attesting witness who writes his name as a witness, there can be no valid execution of the mortgage by such mortgagor. Code, §§1, 1731; Mash v. Daniel, 105 Ala. 393, 18 So. 8; Johnson v. Davis, 95 Ala. 293, 10...
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Lessley v. State
...this class of instruments we have already observed that a signature by mark, though not witnessed, was good. In the case of Houston v. State, 114 Ala. 15, 21 So. 813, it was "It was formerly unnecessary that mortgages of personal property should be in writing, and it has been expressly held......
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Likowski v. Catlett
...Purifier, 32 Okla. 844, 124 P. 322; Hill v. Moore, 46 Okla. 613, 149 P. 211; Scivally v. Doyle, 50 Okla. 275, 151 P. 618; Houston v. State, 114 Ala. 15, 21 So. 813, and insist that there is a conflict in the decisions of this court. ¶19 Such is not the case. These Oklahoma cases cited do no......
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Barksdale v. Bullington
... ... that involved in Johnson v. Davis, supra, where there was a ... witness as required by the statute. Code, § 4288; Houston ... v. State, 114 Ala. 15, 21 So. 813 ... In ... Johnson v. Davis, supra, Mr. Justice McClellan said of ... Carlisle v. Campbell, ... ...
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Tiger v. Lozier
...cases from the Alabama Supreme Court touching the sufficiency of signature of a person who cannot write. In the case of Houston v. State, 114 Ala. 15, 21 So. 813, the court said:"The very purpose of the statute in requiring that the making of a mark by the mortgagor in the execution of the ......