Russell v. Holman

• Decision Date: 18 June 1908
• Citation: 47 So. 205,156 Ala. 432
• Parties: RUSSELL ET AL. v. HOLMAN.
• Court: Alabama Supreme Court

47 So. 205

156 Ala. 432

RUSSELL ET AL. v. HOLMAN.

Supreme Court of Alabama

June 18, 1908

Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge.

Ejectment by Albert Holman against Amos Russell and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. F Saunders, for appellants.

Riley &amp Wilkerson, for appellee.

HARALSON J.

The deed of Amos Russell and wife to J. C. Holman, was signed by them by their marks, and was not attested by two witnesses under section 998 of the Code of 1896; but a justice of the peace took the separate acknowledgment of each of the grantors, as prescribed by sections 996 and 997 of the Code of 1896.

Section 984 of the Code of 1896 provides that "the acknowledgment, hereinafter provided for, operates as a compliance with the requisitions of the second preceding section" (Code 1896, § 982) in respect to the execution of a conveyance by parties unable to write, and who sign by mark.

The acknowledgments of the grantors appear to have been in exact compliance with those two sections (982 and 984), and there was no error, as for the objections raised, to the introduction of said deed.

Nor, for the same reasons, was there error in allowing the introduction of the deed by plaintiff, in proof of his chain of title (as was the introduction of the said deed from Amos Russell and wife to J. C. Holman), from Sam Russell and wife, Cynthia, to J. C. Holman.

The deed from Amos Russell and wife, Luny, to Sam Russell, was also properly allowed in evidence. The certificate of acknowledgment of the justice of the peace was, as to each of said grantors, separate, but one form of acknowledgment was employed, as to both grantors, separately, first as to Amos, and then as to Luny, the wife. The acknowledgment as to the latter shows that she was examined separate and apart from her husband, as provided by section 2034 of the Code of 1896, to make it good as to alienation of a homestead by a married man. So that, the acknowledgment was good whether the land constituted the husband's homestead or not. It was as effectual for any purpose, as if two separate forms of acknowledgment had been employed. Having complied with the statute, and the wife having been examined separate and apart from the husband, as certified by the justice, having used one form, instead of two, the effect was the same. The officer can certify both acknowledgments in one and the same certificate, provided the certificate contains all the essential parts of both certificates required by law. Hood v. Powell, 73 Ala. 171, 173; Loyd v. Oates, 143 Ala. 231, 38 So. 1022, 111 Am. St. Rep. 39.

Section 2034 of the Code of 1896 is the only provision with regard to how the wife shall sign the conveyance of the homestead; and that section makes no reference to how the signature shall be made and does not require any attestation, but makes the certificate of the officer the evidence of the signature's having been made.

Section 982 applies only to the grantor, and not to the wife, and consequently section 984 has no bearing on this case.

Plaintiff asked the witness, Holman, "did J. C. Holman rent the lands embraced in the homestead entry to anyone, at any time?" This was a proper question, calling for evidence of the exercise of ownership over the land by J. C. Holman to whom Amos Russell, who entered the land, had deeded it in 1895. Plaintiff acquired title through Holman and, as contended by counsel, it was permissible for him to prove that J. C....