Ward v. Cheney

• Decision Date: 05 January 1898
• Citation: 117 Ala. 238,22 So. 996
• Parties: WARD v. CHENEY.
• Court: Alabama Supreme Court

22 So. 996

117 Ala. 238

WARD v. CHENEY.

Supreme Court of Alabama

January 5, 1898

Appeal from circuit court, Montgomery country; John R. Tyson, Judge.

Statutory action of ejectment by John C. Cheney, trustee, against Peter Ward. From a verdict and judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff claimed title under a general assignment for the benefit of creditors. The only question presented for review on the present appeal arises upon the admission in evidence of the deed of general assignment executed by Moses Bros. to H. A. Sayre, S. M. Levin, and R. B. Snodgrass. At the request of the plaintiff the court gave the general affirmative charge in his behalf, and refused a similar charge requested by the defendant. To each of these rulings the defendant separately excepted. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the rulings of the court upon the evidence.

Gordon Macdonald and W. W. Hill, for appellant.

Tompkins & Troy and Horace Stringfellow, for appellee.

BRICKELL C.J.

This was a statutory real action, in which the appellee was plaintiff, and the appellant was defendant. The plaintiff deduced title to the premises in controversy under a general assignment for the benefit of creditors, purporting to have been executed on the 6th day of July, 1891, by the individuals composing the partnership of Moses Bros., to H A. Sayre, S. M. Levin, and R. B. Snodgrass, as assignees they appearing to have joined in its execution. The defendant objected to the introduction of the assignment as evidence upon the alleged ground that it appeared affirmatively upon the face of the instrument that the names of Levin and Snodgrass were inserted therein after its execution. All interlineations in the instrument were in the same handwriting as its body, and a particular interlineation is noted as having been made before the signing. The objection was overruled, and an exception reserved by the appellant. It was shown that Sayre, Levin, and Snodgrass had resigned as trustees or assignees, and the court of chancery had appointed the plaintiff and one Janney as their successors and that Janney had died, leaving the plaintiff surviving trustee or assignee. It was for the presiding judge to determine, by an inspection of the assignment, whether the supposed interlineations were apparent on its face, and, if apparent, whether they were not so accounted for or explained as to require that the assignment should go to the jury as an instrument of evidence. 2 Am. & Eng. Enc. Law (2d Ed.) 273. The original instrument is not before us, nor is there any description of the supposed interlineations. There is no more than the affirmation in the objections that these interlineations...