Rickert v. Touart

• Decision Date: 16 November 1911
• Citation: 174 Ala. 107,56 So. 708
• Parties: RICKERT v. TOUART.
• Court: Alabama Supreme Court

56 So. 708

174 Ala. 107

RICKERT v. TOUART.

Supreme Court of Alabama

November 16, 1911

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Ejectment by Anna Rickert against Kate Touart. From a judgment for defendant, plaintiff appeals. Affirmed.

Plaintiff claimed title under the will of Mary Rodrigues made in 1879 and admitted to probate in 1907, seven years after her death on August 25, 1900, while defendant claimed under two conveyances, each executed August 23, 1900, one of which was made to Margaret Wall.

The assignment of errors challenges the correctness of the trial court's rulings as to such charges. The affirmative charge and charges 3 and 5 were duplicated in other charges given. Charge 2 refused defendant was as follows: "The court charges the jury that the fact, if it is a fact, that Dr. Thomas signed the deed in question, from Mary Rodrigues as a witness, cannot be considered by the jury as evidence that Mary Rodrigues intended that the deed should be delivered during her lifetime, or that such deliveries were in fact made." (4) "The court further charges the jury that while they can look to the fact that Dr. Thomas signed the deed from Mary Rodrigues which are in question, as a witness for the purpose of determining whether Mary Rodrigues in fact signed the deed, they cannot consider the fact as evidence tending to show that the deed should be delivered during her lifetime or that they were in fact so delivered." The following charge was given at the request of defendant: "If Margaret Wall had possession of the will after the death of Mary Rodrigues, and kept the same and did not destroy it, after getting the deed from Mary Rodrigues, this would be a circumstance which the jury might consider in determining whether or not she obtained the deed by fraud."

Gregory L. & H. T. Smith and William G. Caffey, for appellant.

L. H. &amp E. W. Faith and Tisdale J. Touart, for appellee.

DOWDELL C.J.

This the second appeal in this case; the first to be found reported in 163 Ala. 362, 50 So. 896.

The rights of the plaintiff and the defendant respectively hinge upon the validity vel non of the deed offered in evidence by the defendant from Mary Rodrigues, the common source of title, to Margaret Wall. This was attacked by the plaintiff on the trial for fraud in its execution. On this question the evidence in the last trial is not materially different from what it was on the former trial.

We are not disposed to depart from what was said and ruled on the former appeal. The case of Thompson v. New England Mortgage & Security Co., 110 Ala. 408, 18 So. 315, 55 Am. St. Rep. 29, cited in brief and argument of counsel for appellant, is not in our opinion, as contended by counsel, in conflict with our ruling on former appeal in this case. In the cited case, the court undertook only to decide what statements contained in the officer's certificate of acknowledgment were conclusive and what were not conclusive, in the absence of duress or fraud. It was not intended to decide, where there is an issue of fraud involved in the execution of the instrument, that unessential statements in the certificate are not admissible, and not to be considered as any other...