Jordan v. Conservation & Land Co.
| Decision Date | 16 November 1961 |
| Docket Number | 1 Div. 954 |
| Citation | 273 Ala. 99,134 So.2d 777 |
| Court | Alabama Supreme Court |
| Parties | Gary JORDAN v. CONSERVATION & LAND CO., Inc., et al. |
D. R. Coley, Jr., and Jere Austill, Jr., Mobile, for appellant.
Hamilton, Denniston, Butler & Riddick, Pillans, Reams, Tappan, Wood & Roberts and McCorvey, Turner, Johnstone, Adams & May, Mobile, for appellees.
This litigation involves the title and ownership of 160 acres of real estate located in Mobile County, Alabama. The case was tried orally before the court on the bill of complaint as amended filed by Gary Jordan (appellant) and the answers of Conservation & Land Co., Inc. and others respectively (appellees) and comes to this court from a final decree dismissing the bill with prejudice. The purpose of the bill as amended is to set aside a deed from Gary Jordan, a widower (complainant) to C. C. Huxford and R. G. Orvin dated May 2, 1931 and recorded May 12, 1931 on the ground that such deed is a forgery and to determine that the complainant is now in the adverse peaceable possession of the suit property under claim of ownership and has been in such possession for more than 20 years prior to the institution of this suit. The rights of the various respondents either as to surface rights or as to miner rights all stem from the deed to which we have referred.
It is undisputed that the complainant, Gary Jordan, went into possession of the suit property under a warranty deed from Andrew Byrd dated April 27, 1928 which was duly recorded in the office of the Judge of Probate of Mobile County, Alabama on May 12, 1931. The testimony in the case shows that the complainant is illiterate, does not read or write and did not read or write in April 1928 when he received the deed from Andrew Byrd. According to his testimony, in the latter part of February or the first part of 1931 he was indebted to one R. G. Orvin in the sum of $80 and because of this indebtedness he made a timber deed to R. G. Orvin of the suit property for a period of 25 years, the consideration for such sale being $80 plus the assumption on the part of R. G. Orvin of the payment of 'all taxes now due and all taxes to become due during the life of this contract.' A copy of the timber deed was introduced in evidence although the copy was not executed.
According to the complainant the timber deed was delivered to R. G. Orvin who was supposed to have it recorded in the Probate Court of Mobile County, Alabama. Simultaneously with the delivery by him of the timber deed to R. G. Orvin he entrusted to R. G. Orvin the original unrecorded warranty deed to him from the aforesaid Andrew Byrd for the purpose of recording the same. R. G. Orvin recorded or caused to be recorded the deed from Andrew Byrd to complainant on May 12, 1931 but never recorded the timber deed. According to the testimony of the complainant one of the respondents, Gerald C. Coggin, acting by or through his agents, servants or employees or the respondent Conservation & Land Co., Inc. acting by or through its agents, servants or employees wrongfully claiming to own an interest in the lands, unlawfully trespassed upon the lands and cut timber thereon. Thereupon according to the complainant he employed counsel who then acting for the complainant searched the records of the office of the Judge or Probate of Mobile County, Alabama and determined and advised the complainant there was no timber deed of record but instead there was on record what purported to be a warranty deed executed by the complainant which was the first knowledge that complainant had that any one claimed an interest in the fee estate in said lands as against the complainant.
All of the respondents (appellees) admitted that Gary Jordan prior to the year 1931 had title to the suit property but claimed that the lands involved were conveyed in 1931 by Gary Jordan by deed to C. C. Huxford and R. G. Orvin. Each of the respondents denied that this deed from Gary Jordan to C. C. Huxford and R. G. Orvin was a forgery. They denied that the complainant, Gary Jordan, had possession of the lands since the aforesaid deed from Gary Jordan to C. C. Huxford and R. G. Orvin had been executed and alleged affirmatively that they or their predecessors in title subsequent to the aforesaid deed had been in possession of the lands and had paid the taxes thereon.
I. We think it is clear from the evidence that the deed from the complainant to C. C. Huxford and R. G. Orvin was genuine and not a forgery. Mrs. Ina Belle Templin, witness for the complainant, the notary public who attested the deed and who took the acknowledgment of the deed, testified as to its execution, attestation and acknowledgment. Mr. William B. Inge testified that the deed had been prepared in his office and that he found his office copy. He further identified the signatures of Mrs. Templin and C. C. Inge, his former associate in the practice of law, who also appears as a witness on the deed and who is now deceased. It is true that complainant testified that he did not sign the deed. Yet while Mrs. Templin could not remember the incident when she took the acknowledgment, she testified that she certainly did take the acknowledgment. The deed was executed by the complainant by mark near his name. Where there is intention on the part of the grantor to execute a deed the making of his mark is the act of the grantor and is...
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...See Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So.2d 865 (1972), and cases cited therein; Jordan v. Conservation and Land Co., 273 Ala. 99, 134 So.2d 777 (1961), and cases cited Only in Jordan supra, was the knowledge of the notary even somewhat at issue. In Jordan, the complainant......
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Briggs v. Glass
...that acknowledgment and prompt recordation of a deed is prima facie evidence of its due execution. Jordan v. Conservation and Land Company, 273 Ala. 99, 102, 134 So.2d 777 (1961); Thompson v. Mitchell, 337 So.2d 1317, 1318 (Ala.1976). The appellant argues convincingly, however, that acknowl......
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...of an instrument are in his handwriting is sufficient evidence of execution. This Court stated in Jordan v. Conservation & Land Co., 273 Ala. 99, 134 So.2d 777 (1961): "[T]he certificate of a notary unless and until impeached is conclusive of the facts therein stated which the officer is by......