Purser v. Smith

• Decision Date: 22 November 1917
• Docket Number: 8 Div. 992
• Citation: 200 Ala. 573,76 So. 931
• Parties: PURSER v. SMITH et al.
• Court: Alabama Supreme Court

76 So. 931

200 Ala. 573

PURSER v. SMITH et al.

8 Div. 992

Supreme Court of Alabama

November 22, 1917

Appeal from Chancery Court, Franklin County; James E. Horton, Jr. Chancellor.

Bill for partition by Sallie Smith and others against John Purser. Judgment for complainants, and respondent appeals. Reversed and rendered.

William L. Chenault, of Russellville, for appellant.

Travis Williams, of Russellville, for appellees.

ANDERSON C.J.

This appeal involves the validity vel non of a certain deed made by the heirs of their father to their brother, John Smith under whom the appellant claims title. The chancery court held that Barnes was a de facto officer, and that the acknowledgment was binding as to C.N. Smith and his wife, and which said holding as to this extent was favorable to the appellant, and as the said C.N. Smith and wife do not take a cross-appeal or complain of said ruling, we need not review the decree of the said chancery court in this respect, and that being the case, it is unnecessary for us to determine whether or not Barnes was such an officer as could take a valid acknowledgment, for, conceding that he was, it was held that the attempted acknowledgment was defective and invalid as to the other heirs, and that the appellant, John Purser did not acquire their interest under the deed from John Smith to him, because John Smith had not legally acquired their said interest in the land. We fully agree with the chancery court that the acknowledgment as to the grantor owners other than C.N. Smith was fatally defective, and as suggested in brief of appellant's counsel, the main question is whether or not the acknowledgment, though imperfect as such, amounted to a sufficient attestation under the statute (section 3355 of the Code of 1907).

We think that the proof shows conclusively that the parties all contemplated conveying the property to their brother, John, that they went before Barnes for that purpose, and that each of them authorized Barnes to sign the deed for them, and which he did in their presence, so the only question to be settled is whether or not there was a proper and binding signing and attestation, there being but one witness.

It is, of course, well settled that an acknowledgment, though defective as such, will amount to an attestation by the officers taking same. It has also been held by this court, but without citing section 3355, though it and its predecessors were in the Codes at the time, that a grantor can make an efficacious signature to a deed by the hand of another whether he is sufficiently educated to write his name or not. Middlebrook v. Barefoot, 121 Ala. 642, 25 So. 102.

It also seems that, if the deed is signed...