Sulzby v. Palmer

• Decision Date: 20 January 1916
• Docket Number: 1
• Citation: 194 Ala. 524,70 So. 1,196 Ala. 645
• Parties: SULZBY v. PALMER.
• Court: Alabama Supreme Court

70 So. 1

SULZBY v. PALMER.

194 Ala. 524, 196 Ala. 645

No. 1

Supreme Court of Alabama

January 20, 1916

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by James F. Sulzby against Mary Palmer. Decree for respondent and complainant appeals. Affirmed.

W.T Hill and James A. Mitchell, both of Birmingham, for appellant.

Thompson, Thompson & Bachrach, of Birmingham, for appellee.

THOMAS J.

Appellant, James F. Sulzby, filed his bill to foreclose a mortgage. Appellee, Mary Palmer, by answer and cross-bill under oath, denied the execution of the notes, and of the mortgage securing the same, and prayed the cancellation of the same as a cloud on her title.

The statute, requiring that a plea, denying "the execution by the defendant, his agent or attorney, or partner, of any instrument writing the foundation of the suit or the assignment of the same," must be verified by affidavit, applies to proceedings in equity as to those in courts of law. Code 1907, § 5332; Bonner v. Young, 68 Ala. 35; Dreyspring, Adm'r, v. Loeb, 119 Ala. 282, 24 So. 734; Noble et al. v. Gilliam, 136 Ala. 618, 33 So. 861; Henderson v. Brown, 125 Ala. 567, 28 So. 79.

Every written instrument, the foundation of a suit, purporting to be signed by the defendant, his partner, agent, or attorney in fact--

"must be received in evidence without proof of the execution, unless the execution thereof is denied by plea verified by affidavit." Code, § 3967.

In the case before us, the eighth paragraph of the appellee's answer and cross-bill is verified by the affidavit of respondent in the court below, and denies the execution of the notes and of the mortgage foreclosure of which is sought.

We have for consideration, then, the burden of proof on appellant, to establish the material allegations of the bill, which embraces proof of the existence of the debt and of the execution of the notes and mortgage securing the same. The original notes and the mortgage are before us for inspection. The notes import a consideration, and purport to be signed by appellee. The mortgage contains a certificate of acknowledgment.

It has been the ruling of this court that the body of the instrument may be looked to in aid of the probate. Bradford v. Dawson, 2 Ala. 207; Gates v. Hester, 81 Ala. 357, 1 South, 848; Frederick v. Wilcox, 119 Ala. 355, 358, 24 So. 582, 72 Am.St.Rep. 925; Stephens v. Middlebrooks, 160 Ala. 283, 49 So. 321.

Where the official certificate of the acknowledgment conforms substantially to the statute, it authorizes the conveyance to be read in evidence.

It is the rule that when a purported deed is shown to have been signed by the grantor, and to have been acknowledged, and duly certified by a proper officer, and recorded in time in the office of the judge of probate of the county in which the lands lie, and there is no other proof to weaken the force of these facts, this is sufficient proof to complete execution by delivery, although there is no direct proof of delivery. Ward v. Ross, 1 Stew. 136; Frisbie v. McCarty, 1 Stew. & P. 56; Elsberry v. Boykin, 65 Ala. 336; Gulf Red Cedar Co. v. Crenshaw et al., 169 Ala. 613, 53 So. 812; Culver et al. v. Carroll, 175 Ala. 469, 57 So. 767, Ann.Cas. 1914D, 103.

In Orendorff v. Suit Suit et 167 Ala. 563, 52 So. 744, the court declared that the casual presence of a putative grantor and the possession of an instrument purporting to have been not of themselves sufficient to confer jurisdiction. There must be an acknowledgement, by the grantor of the instrument signed, before the officer is authorized to certify the acknowledgment. Byrd v. Bailey et al., 169 Ala. 452, 53 So. 773, Ala.Cas. 1912B, 331.

The statutory rule provided by the act (Acts Sp.Sess.1909, p. 14) is that:

"Conveyances of property, real or personal, or any interest therein, whether absolute or on condition, which are acknowledged or proved according to law, and recorded, may be received in evidence in any court without further proof; and if it appears to the court that the original conveyance has been lost or destroyed, or that the party offering a transcript, had not the custody or control thereof, the court must receive the transcript, duly certified in the place of the original, unless the reputed maker is in bona fide possession of the property and makes and files an affidavit that the said conveyance is a forgery."

The statute (Code, § 5332) requiring the verification of all pleas denying the execution by the defendant of an instrument in writing, the foundation of the suit, is as follows:

"All pleas in abatement, unless it be a matter of record, pleas which deny the execution by the defendant, his agent or attorney, or partner, of any instrument in writing, the foundation of the suit, or the assignment of the same, or which set forth any instrument in writing whether under seal or not, which is alleged to be lost or destroyed, and pleas since the last continuance, must be verified by affidavit."

Where the statute (Code, § 3967) is complied with by filing the plea of non est factum, the burden of proving the execution of the instrument, the foundation of the suit, is upon the complainant.

The want of an affidavit to a plea of non est factum is a defect available on demurrer. McWhorter v. Lewis, 4 Ala. 198; Bryan et al. v. Wilson, 27 Ala. 208; M. & M. Ry. Co. v. Gilmer, 85 Ala. 422, 5 So. 138; Lesser v. Scholze, 93 Ala. 338, 9 So. 273.

In an action on a promissory note, a plea, averring that the date of the note has been changed since the defendant signed it, is a plea of non est factum. Dexter v. Ohlander, 89 Ala. 262, 7 So. 115; Lesser v. Scholze, 93 Ala. 338, 9 So. 273. So in Milligan v. Pollard, 112 Ala. 465, 20 So. 620, a plea, averring that defendant's intestate was insane at the time he gave the note sued on, was held to be essentially such a plea.

There can be no doubt that the matter alleged in paragraph 8 of respondent's cross-bill, added by way of amendment, amounted, in legal effect, to a plea of non est factum; and, if verified by affidavit as provided in section 3967 of the Code of 1907, it prevented the notes from being received in evidence without proof of execution by complainant.

What is a sufficient verification was declared in Berry et al. v. Ferguson et al., 58 Ala. 314, where the court stated that the plea must be directed and positive, though the affidavit of its truth may be made on information and belief; that the qualification must not be in the plea, but may be in the affidavit. Again, in McCoy v. Harrell, 40 Ala. 232, it was held that the recital of the plea that the defendant "makes oath that this plea is true," the record showing that the plea was sworn to before the clerk, is a sufficient verification, although it was signed by his attorney and not by the defendant. In Martin v. Dortch, 1 Stew. 479, 481, it was said that the defendant, by special plea stating the circumstances, may deny the legal effect or the validity of the bond on which he is sued, and that if the facts averred are, in legal effect, to say that the instrument declared on was not the act of the defendant, is not the instrument signed by the defendant, it is a plea of non est factum, and that a verification thereof, to the best of affiant's knowledge and belief, would present the issue sought to be raised.

In Winston v. Moffet, 9 Port. 518, Mr. Justice Ormond dismisses this question by saying:

"In all cases in which a plea is required to be sworn to, it may be done by the person swearing to the best of his knowledge and belief."

To the same effect was the holding in Trustees v. Brown, 3 Ala. 326.

In Tindal, Adm'x, v. Bright, Minor, 105, the Chief Justice said:

"The statute requires that the plea shall be accompanied with an affidavit of its truth, but does not prescribe the form and manner in which the matter shall be set forth, or that the affidavit shall be general or special. As affected by the statute, it certainly cannot be important whether the party swears generally that his plea is true, or swears to facts from which its truth must necessarily be inferred. *** It is certainly more safe, both as to the conscience of the defendant and the rights of the plaintiff, to state the facts specially."

In Mobile & Montgomery Railway Co. v. Gilmer, 85 Ala. 422, 5 So. 138, the court gave the statute a liberal construction.

It is significant that the early decisions referred to were under a statute providing "that no plea of non est factum shall be admitted to be pleaded, but when accompanied with an affidavit of its truth" (Toulmin's Digest of Laws of Alabama, § 33, p. 454), and that the later statute (Code, 1907, § 3967) requires no such affidavit of "its truth," but only that it be "denied by plea verified by affidavit." This change is found in section 2279 of the Code of 1852, and has been continued in the subsequent Codes as first made. In this we see, not only a liberal construction of the statute by the decisions of our court, but a liberal legislative construction of the verification of such pleas that has continued to the present time.

The cases on this point, cited by appellee's counsel, are inapt. In Burgess v. Martin, 111 Ala. 656, 20 So 506, where the plaintiff was praying for discovery and for the appointment of a receiver, the court gave approval to the expression, "has been informed and believes and upon such information and belief charges the fact to be," etc. Is this not authority for the instant case, where the amendment charges specifically and positively what the facts are, and that affiant "makes oath that this is true"? So, in the case of Smothers v. Meridian Fertilizer Factory, 137 Ala. 166, 33 So. 898, it was held that where the verification to a bill in chancery is made by...