Williams v. Armstrong

• Decision Date: 29 June 1901
• Citation: 30 So. 553,130 Ala. 389
• Parties: WILLIAMS ET AL. v. ARMSTRONG ET AL.
• Court: Alabama Supreme Court

30 So. 553

130 Ala. 389

WILLIAMS ET AL. v. ARMSTRONG ET AL.

Supreme Court of Alabama

June 29, 1901

Appeal from circuit court, Bullock county; A. A. Evans, Judge.

Action by Charles Armstrong and others against Cap Williams and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

On motion of Cap Williams the American Freehold Land Mortgage Company of London, Limited, was made a party defendant; said Williams being a tenant in possession under said mortgage company. The cause was tried upon issue joined on the plea of the general issue. The facts of the case showing the claim of the plaintiffs and the respondents, respectively, are sufficiently shown in the opinion. Upon the defendant offering to introduce in evidence the deed which was executed on December 4, 1881, by Charles Armstrong and E. C Armstrong, in which the lands involved in this controversy were attempted to be conveyed by A. J. Armstrong, the plaintiffs objected to the introduction of said deed in evidence on the ground that it was dated on Sunday, and the law presumed that the same was delivered on that day. The court sustained the objection, and refused to allow said deed to be introduced in evidence, and to this ruling the defendant duly excepted. Upon the introduction of all the evidence the court, at the request of the plaintiffs, gave to the jury the general affirmative charge in their favor. To the giving of this charge the defendants duly excepted.

J. D Norman, for appellants.

Gordon Macdonald, Edwin F. Jones, George Stowers, and John D McNeel, for appellees.

TYSON J.

The plaintiffs claim title to the land which they were permitted to recover in the court below by inheritance from their mother, who died in 1886. She acquired title to and possession of said land in March, 1881, and continued in the possession of the same until the date of her death. On December 4, 1881, she and her husband signed, sealed, and delivered in the presence of two witnesses a deed to this land to one A. J. Armstrong, upon a consideration therein recited of $2,500 paid, and which was also acknowledged by her separate and apart from her husband on the same day before a justice of the peace. On the 12th January following A. J. Armstrong, upon a recited consideration of $2,600 paid by Charles Armstrong, the husband of the mother of plaintiffs, executed to him a deed to this land; and on the 14th January, 1884, Charles Armstrong and the plaintiffs' mother executed to the defendant mortgage company a mortgage upon this land to secure an indebtedness of the said Charles, which was afterwards foreclosed in 1892 by sale under the power contained in it, the mortgage company becoming the purchaser. Shortly after the sale, and in the same year, the mortgage company instituted its action of ejectment against Charles, the husband, and father of these plaintiffs, for the possession of this land. In that suit he disclaimed possession of, and all right, title, or interest in and to, said land. In 1894 a judgment was recovered in that suit, and the mortgage company went into possession. In 1896 Charles Armstrong died, and in 1897 this suit was brought.

The day on which the deed was executed by plaintiffs' mother to A. J. Armstrong, to wit, December 4, 1881, was Sunday. There was no evidence tending in the remotest degree to show a delivery of the deed on any day different from its date. In the absence of such proof, it must be presumed that the deed was delivered on the day of its date. Fitzpatrick v Brigman (Ala.) 30 So. 500; 2 Am. & Eng. Enc. Law (2d Ed.) 152, and note 2. And the burden of overcoming that presumption rested upon the defendants. In other words, it was on them to prove that it was executed on a day which was not Sunday. Hauerwas v. Goodloe, 101 Ala. 162, 13 So. 567, and authorities there cited. It is scarcely necessary to say that an effectual delivery of the deed was essential to the passing of the title, or to give force to it as a contract. The deed, being made and delivered on Sunday, must be held to be void, under the express provision of section 2170 of the Code. Rainey v. Capps, 22 Ala. 292; Burns v....