Jinwright v. Nelson

• Court: Alabama Supreme Court
• Writing for the Court: BRICKELL, C.J.
• Citation: Jinwright v. Nelson, 105 Ala. 399, 17 So. 91 (Ala. 1895)
• Decision Date: 16 January 1895
• Parties: JINWRIGHT ET AL. v. NELSON.

17 So. 91

105 Ala. 399

JINWRIGHT ET AL. v. NELSON.

Supreme Court of Alabama

January 16, 1895

Appeal from circuit court, Pike county; J. R. Tyson, Judge.

Action by R. M. Nelson against J. M. Jinwright and others. From a judgment for the plaintiff, defendants appeal. Affirmed.

This was a statutory real action in the nature of ejectment, and was brought by the appellee, R. M. Nelson, against the appellants, J. M. Jinwright and others, to recover the possession of certain lands specifically described in the complaint. Upon the trial of the case it was shown that the plaintiff rested his claim to the land sued for upon a deed which was executed to him by the Scottish-American Mortgage Company, Limited, and the Loan Company of Alabama, conveying this property, which the plaintiff bought at a foreclosure sale under a mortgage executed by J. M. Jinwright and wife to the grantors in said deed, which mortgage conveyed the land in controversy. The defendants objected to the introduction in evidence of the said deed, and the certificate of acknowledgment attached thereto, and duly excepted to the court's overruling their objection. The facts in reference to this ruling are sufficiently stated in the opinion. The plaintiff also introduced in evidence, against the objection and exception of the defendants, the mortgages executed by J. M. Jinwright and his wife, Christiana P Jinwright, to the Scottish-American Mortgage Company Limited, and the Loan Company of Alabama, respectively. To these mortgages there were certificates of the separate acknowledgment of Christiana P. Jinwright, which were in due form and signed by J. D. Gafford, a notary public. The defendant J. M. Jinwright testified that at the time of the execution of the mortgage which conveyed the land sued for in this action he was a married man, living with his wife on the 160 acres conveyed by said mortgage, which was occupied by them, at the time of the execution of said mortgage, as a homestead. In reference to the execution of the mortgage by his wife, Christiana P. Jinwright, J. M. Jinwright, her husband, testified that Mr. Gafford, a notary public, came to his house for the purpose of fixing up the mortgage. That after his arrival witness' wife came into the room, and witness asked her to sign the mortgage; she refused to do so witness urged and persuaded her to sign it, and finally she said she would sign it if he would give her $50 of the money and that she would not do it otherwise, which he agreed to do; and she then signed it in the presence of the officer, and left the room. Nothing more was said about the signing of the mortgage. Gafford never spoke to her after the mortgage was signed in his presence, and after the agreement with her husband that he would give her $50 of the money, and she said nothing to him. This conversation, however, was had in the presence of Gafford, but he, Gafford, took no part in it. Gafford did not tell her he was an officer. Gafford did not examine her in any manner with reference to her signing the mortgage. The plaintiff separately and severally excepted to each portion of this testimony of the witness J. M. Jinwright, and moved the court to exclude the same. The court granted this motion, and to such ruling the defendants separately excepted. Several other witnesses testified substantially to the same facts as to the signing of the mortgage by Christiana P. Jinwright, and the same rulings were had upon their testimony, and the same exceptions reserved. Christiana P. Jinwright testified that Mr. Gafford came to their house, and she went into the room, on request of her husband, where Mr. Gafford was; that her husband urged her to sign the mortgage, but she said she was not willing to do so unless he would give her $50 of the money. Her husband continued to persuade and urge her to sign it, and agreed to give her the $50 of the money, and she signed it then and there, in the presence of Mr. Gafford. Mr. Gafford did not tell her he was an officer. He did not say a word to her, or ask her any questions, after she signed her name to the mortgage. She said nothing to him after the mortgage was signed. As soon as she signed the mortgage, she left the room. Nothing else occurred between her and Gafford. He asked her nothing as to her having signed it, and she said nothing to him about signing it. The conversation between her and her husband about signing for $50 was in the presence of Gafford. The plaintiff moved to exclude each portion of this testimony of Christiana P. Jinwright, which motion the court granted, and the defendants separately excepted. The court, at the request of the plaintiff, gave the general affirmative charge in his behalf, and to the giving of this charge the defendants duly excepted. There was judgment for the plaintiff. Defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

Hubbard, Wilkerson & Hubbard, for appellants.

Parks & Gamble, for appellee.

BRICKELL C.J.

The appellee deduced title to the premises in controversy through a conveyance purporting to have been executed by the Scottish-American Mortgage Company, Limited, a corporation having its domicile in Scotland, and by the Loan Company of Alabama, a domestic corporation. The conveyance bore a certificate of acknowledgment of execution in due form purporting to have been made before the United States consul for Leith, at Edinburgh, Scotland, by the president and secretary of the Scottish-American Mortgage Company, whose names are signed to the conveyance, and whom the consul certified were known to him, and that in their official capacity the acknowledgment was made. The conveyance is under a seal purporting to be the seal of the company, and the testimonial clause is in these words: "In testimony whereof, the said the Scottish-American Mortgage Company and the said Loan Company of Alabama have caused their corporate seals to be hereto attached by their agents duly authorized and empowered so to do." This is followed by the corporate seal, opposite which is written, "The Scottish-American Mortgage Co., Limited, by J. Guthrie Smith, Pres't. Robert Benshon, Sect'y,"-the persons acknowledging execution before the consul. The appellants made five separate objections to the introduction of the conveyance in evidence. The first was...