Loyd v. Oates

• Decision Date: 09 February 1905
• Citation: 143 Ala. 231,38 So. 1022
• Parties: LOYD v. OATES.
• Court: Alabama Supreme Court

38 So. 1022

143 Ala. 231

LOYD v. OATES.

Supreme Court of Alabama

February 9, 1905

Appeal from Circuit Court, Henry County; John P. Hubbard, Judge.

Action of ejectment by W. S. Oates against F. M. Loyd. From a judgment for plaintiff, defendant appeals. Affirmed.

Espy &amp Farmer, for appellant.

H. A Pearce, for appellee.

DENSON J.

The record shows that this case was tried by the court without the intervention of a jury, and a judgment was rendered in favor of the plaintiff. There was no special finding of the facts by the court, nor was a special finding requested, nor were the facts agreed upon. On this state of the case it has been several times ruled by this court that the conclusion of the judge stands as the verdict of a jury and cannot be revised on appeal. Code 1896,§§ 3319, 3321; Quillman v Gurley, 85 Ala. 594, 5 So. 345; Western Union Telegraph Co. v. White & Co., 129 Ala. 188, 30 So. 279; Norille v. State, 131 Ala. 35, 31 So. 19.

After the plaintiff had offered in evidence a patent to the lands sued for, issued to Wiley Deese by the government of the United States on the 25th day of May, 1885, he then offered as evidence a deed from Wiley Deese and his wife, Caroline Josephene Deese, to plaintiff, bearing date November 8, 1894 and covering the lands sued for. It was admitted that at the time the said deed purported to have been executed Wiley Deese was occupying the lands as a homestead, and that it did not exceed in area and value the limitations fixed by the statute relating to homestead exemptions. It was further admitted that Caroline Josephene Deese was the wife of Wiley, and was living with him at the time the deed purported to have been executed, and that she could not write her name. The deed purported to have been acknowledged in due form, as required by the statute relating to acknowledgments or conveyances of the homestead. Code 1896, § 2034. It was admitted that the signature of the notary public who took the acknowledgments of the deed was genuine, and that he put his signature to the acknowledgments as an officer. The plaintiff objected to the deed, on the grounds that it was illegal, irrelevant, and that the wife could not write her name, and the words "her mark" were not written against her name or over it, and because there was no attesting witness to the signature, and that there was no acknowledgment by an officer authorized to take acknowledgment of the purported signature.

Notaries public are authorized, under Code 1896, § 993, to take acknowledgments of conveyances. We find, upon an inspection of the deed as set out in the bill of exceptions, that the name Caroline Josephene Deese appears to be signed to the deed, and that the cross mark appears between the name Josephene and the name Deese, but that the words "her mark" do not appear. Section 982, of the Code of 1896 provides that conveyances for the alienation of lands must be signed at their foot, and, if the party is not able to sign his name, it must be written for him, with the words "his mark" written against the same or over it, and that where the party cannot write the signature must be attested by two witnesses. Under section 984 of the Code, an acknowledgment of the deed operates a...