Steverson v. W.C. Agee & Co.

• Decision Date: 18 November 1913
• Citation: 63 So. 794,9 Ala.App. 389
• Parties: STEVERSON v. W.C. AGEE & CO.
• Court: Alabama Court of Appeals

63 So. 794

9 Ala.App. 389

STEVERSON v. W.C. AGEE & CO.

Court of Appeals of Alabama

November 18, 1913

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Action by W.C. Agee & Co. against J.M. Steverson. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

The certificate of acknowledgment referred to in the opinion is as follows: "I, A.A. Campbell, a notary public in and for New York county, state of New York, hereby certify that John T. Atterbury, whose name is signed to the foregoing conveyance, and who is known to me, acknowledged before me on this day, that being informed of the contents of the conveyance, he, as vice president of the Alabama Mineral Land Company executed the same in the name, and in behalf of said corporation, and affixed the corporate seal thereto voluntarily on the day the same bears date. Given under my hand and official seal this 26th day of August 1909. A.A Campbell, Notary Public, New York County, New York. [Seal.]"

Riddle Ellis, Riddle & Pruet, of Goodwater, for appellant.

P.O Stevens, of Alexander City, for appellees.

THOMAS J.

The appellant, Steverson, was sued by the appellees, Agee & Co. on an account, and there was judgment against him, from which he appeals.

On the trial he did not dispute the correctness of the account or his liability therefor, but sought to defeat a recovery only by attempting to show a set-off against the plaintiff, under a plea of set-off, duly filed, in code form, for an unliquidated demand and for money had and received. The evidence which the defendant offered in support of this plea of set-off was excluded by the court, or rather not allowed by it to be introduced, and it gave the affirmative charge in favor of the plaintiffs.

This evidence tended to show that the Alabama Mineral Land Company, a corporation with headquarters in New York, but with a local office in Anniston, Ala., in charge of one Davis, was, on and prior to August 23, 1909, in possession of and claiming to own certain lands in Shelby county, Ala.; that one Paul Rich, a sawmill man, besought the defendant at the latter's home in Alexander City, Tallapoosa county, Ala., to loan him (Rich) the money with which to buy the timber rights on this land, whereupon, the two on the day above named went up to Anniston to see Davis, the local agent there of the land company, about the purchase, and closed a trade with him for the timber rights. He was without authority, however, to execute a formal deed, but it was agreed that he was to at once prepare and send on to New York, for the company to execute, a deed from it to Steverson (defendant here) to the timber rights to the lands, which was to be delivered upon the payment by the latter of the agreed purchase price. That night Steverson and Rich returned to Alexander City, and the next morning Rich, in pursuance of the previous agreement between him and Steverson, to the effect that Steverson was buying the timber rights on the land for him (Rich), executed to Steverson, in order to get Steverson to advance the purchase money for the timber rights, as well as to procure from Steverson an additional loan, a mortgage to the timber rights on said lands, as well as on the lumber output of his sawmills and on certain other personal property. Upon the execution of this mortgage by Rich to him (Steverson), the latter on that day, August 24, 1909, sent off the purchase money, $1,200, to the Alabama Mineral Land Company, or to their agent, and turned over to Rich the $500 additional loan, making a mortgage debt of $1,700, as recited therein. The agreement was that Rich was to take immediate possession of the timber rights on the land and cut and manufacture the timber into lumber and deliver it to Steverson until the mortgage debt was paid, and that so soon as Steverson received his deed from the land company, he would execute one to Rich to the timber rights on the land, and forward to him. A few days later Steverson received such a deed. It bears date of August 26, 1909, and Steverson, upon its receipt, executed and forwarded by mail to Rich a deed as promised; but it appears that it was never in fact received by the latter, and hence it was ineffectual as a deed, for want of delivery. At any rate, however, Rich took possession of the timber rights, claiming to own them, under this purchase from Steverson, and proceeded to cut and manufacture the timber into lumber at his sawmill, several cars of which the plaintiffs here (Agee & Co.) bought from him without the knowledge or consent of defendant, Steverson, but with presumptive knowledge on their part of his lien or title, since his mortgage mentioned and his deed mentioned were on record at the time in Shelby county, having been recorded there two days after their respective execution. It is the value of these cars of lumber so purchased by the plaintiffs that the defendant, Steverson, whose mortgage against Rich is still unsatisfied in whole or in part, seeks to offset against plaintiffs' account asserted in this suit.

If the facts stated would sustain in the defendant, Steverson, either an action of trover or trespass on the case, on suit brought by him against the plaintiffs, Agee & Co., they are available as a set-off under the pleas filed in this suit. Code, § 5858, and authorities there cited; Code, § 5382, form 27. If he had the legal title to the lumber at the time of the conversion by the plaintiffs, the right of action would be trover; and if he had only an equitable lien or title, it would be trespass on the case. The real question is: Did the facts which the defendant offered to prove show either sort of title or lien in him? The plaintiffs contend that they do not, and we will separately examine and dispose of their several contentions as to why they do not, as made by them in their objections in the lower court to the evidence when offered, since they have filed no brief here.

An objection was made by the plaintiffs to the introduction in evidence of the deed from the Alabama Mineral Land Company to the defendant, Steverson, on the ground that it was not self-proving and its execution had not been proved. The court sustained the objection. The conveyance is under a seal purporting to be that of the corporation, and the testimonial clause reads as follows: "In testimony whereof, the said Alabama Mineral Land Company has caused its corporate name to be hereunto signed, and its corporate seal to be affixed by its vice president on August 26, 1909." This is followed by the corporate seal, opposite which is written: "Alabama Mineral Land Co., by J.T. Atterberry, Vice President." Then follows a certificate of acknowledgment (which the reporter will set out) under the hand and official seal of A.A. Campbell, notary public of New York, N.Y., certifying the appearance before him of J.T. Atterberry, vice president of the Alabama Mineral Land Company, and his acknowledgment, in the form as will be set out, of the execution of the deed for and in behalf of the corporation and under its corporate seal. Undoubtedly this form of acknowledgment would have been sufficient if it had been employed prior to the adoption of the Code of 1907, since, until then, no special form of acknowledgment having been prescribed by statute for corporations, it was held that an acknowledgment for a corporation which contained every substantial statement of the general form prescribed for individuals was sufficient. Jinwright v. Nelson, 105 Ala. 403, 17 So. 91. In section 3361 of that Code, however, the Legislature for the first time established a separate form of acknowledgment for corporations, and...