Lewis v. Watson

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, J.
• Citation: Lewis v. Watson, 98 Ala. 479, 13 So. 570 (Ala. 1893)
• Decision Date: 13 June 1893
• Parties: LEWIS v. WATSON.

13 So. 570

98 Ala. 479

LEWIS v. WATSON.

Supreme Court of Alabama

June 13, 1893

Appeal from circuit court, Covington county; John P. Hubbard, Judge.

Statutory ejectment by Ezekiel Watson against B. H. Lewis administrator of the estate of Alfred Holley, deceased. Defendant pleaded the general issue, and adverse possession for 10 years. Plaintiff had judgment, and defendant appeals. Reversed.

The plaintiff bases his right to recover upon a purchase of the lot in controversy from one John B. Dixon in 1866, and contended that he occupied this lot under that purchase continuously, until 1887 or 1888, when the defendant's intestate took violent possession of the lot. The defendant bases his right and possession under a sheriff's deed executed on May 3, 1875, at which time the lot in controversy was sold under an execution issued on a judgment recovered against Ezekiel Watson. The defendant introduced much testimony tending to show that he had been in possession of said lot from the time of his purchase up to the institution of this suit, on June 9, 1890, with the exception of a short time, when Ezekiel Watson entered upon the lot clandestinely. It was also shown by the testimony for the defendant that he had recovered judgment in an action of ejectment against said Watson during this trespass. Upon the defendant's offering to introduce in evidence a copy of said judgment the plaintiff objected. The court sustained the objection and the defendant duly excepted. There were many exceptions reserved to the rulings of the court upon the evidence, and also to the giving and refusal to give certain charges, but the opinion of this court renders it unnecessary to notice them in detail.

John Gamble, for appellant.

J. W. Posey, for appellee.

McCLELLAN J.

This is a statutory action for the recovery of a certain lot of land in the town of Andalusia. Watson is plaintiff, and Lewis, as administrator of one Holley, deceased, is defendant. Plaintiff derives title from one Dixon by deed appearing to have been executed in 1866. Defendant claims title through Watson, under a sale and conveyance by the sheriff to his intestate in 1875, made in satisfaction of certain judgments against Watson, and also by virtue of an adverse possession on the part of the intestate and himself subsequent to said sale and conveyance.

1. Some rulings were made on the trial in respect of Watson's title to the land prior to the sheriff's sale and conveyance of it, as his property, to Holley, and upon testimony in relation thereto. These are of no importance in the case, and, whether erroneous or not, in the abstract, need not be considered, since the defendant-claiming, as he does, under that title, and having recognized its validity by purchasing at the sheriff's sale, and now further recognizing it by a reliance upon the acquisition of it through that sale, and upon adverse possession since that time under the color of title, with which, at least, he was invested by the conveyance then made by the sheriff-is not in a position to impeach Watson's original title. Ware v. Dewberry, 84 Ala. 568, 4 South. Rep. 404; Houston v. Farris, 71 Ala. 570; Tennessee & C. R. R. Co. v. East Alabama Ry. Co., 75 Ala. 516, 525.

2. The evidence as to the execution of the deed by the sheriff to Holley was that of the probate judge of the county, and is as follows: "That J. A. Thompson, the sheriff, could not write his name, and that he [the witness] frequently wrote in the sheriff's office for said Thompson; that he indorsed the levies on the execution here in evidence, and wrote the deed of Thompson, as sheriff, to Alfred Holley, dated May 3, 1875; that said deed and indorsements on said levies are in his handwriting; that said J. A. Thompson was present when said deed was written; that it was written in the sheriff's office, at Thompson's instance, and under his direction; that, after the deed was written, Thompson told him to sign his name, as sheriff, to the deed, which he did, and then, as judge of probate, took Thompson's acknowledgment to the deed, and carried it into the probate office, and afterwards recorded it; *** and that some one came and got the deed from the probate office after it was recorded, but don't now remember who it was." It is not entirely clear, on this testimony, that Thompson was actually and immediately present when his name was subscribed to the deed by Fletcher, by his direction; but, manifestly, there was room for an inference to be drawn to that effect by the jury. If he was so present, as the jury might have found, the subscription to the instrument was as efficacious as if he had been able to write his name, and with his own hand had written it, or, he being unable to write his name, as if he had made his mark, and the words, "his mark," had been written against it, and had the signature thus made attested by two witnesses. This on the principle that where the grantor is present, and authorizes another, either expressly or impliedly, to sign his name to the deed, it then becomes his deed, and is as binding upon him, to all intents and purposes, as if he had personally affixed his signature. The reason for the doctrine is thus stated by Shaw, C.J.: "The name being written by another hand, in the presence of the grantor, and at her request, is her act. The disposing capacity, the act of mind, which are the essential and efficient ingredients of the deed, are hers; and she merely uses the hand of another, through incapacity or weakness, instead of her own, to do the physical act of making a written sign. To hold otherwise would be to decide that a person having a full mind, and clear capacity, but, through physical inability, incapable of making a mark, could never make a conveyance or execute a deed." Gardner v. Gardner, 5 Cush. 483; 1 Devl. Deeds, §§ 232, 233; Kime v. Brooks, 9 Ired. 218; Frost v. Deering, 21 Me. 156; Videau v. Griffin, 21 Cal. 390; Rev. St. Me. 1857, p. 56; Lovejoy v. Richardson, 68 Me. 386; Bird v. Decker, 64 Me. 551.

3. And it would seem that if the signing by Fletcher, under the direction, and in the immediate presence, of Thompson, was not in itself efficacious, the subsequent acknowledgment of the latter, as shown on the deed, would be a sufficient recognition and adoption of the signature as his own. Bartlett v. Drake, 100 Mass. 174.

4. Certain it is that this...