Opinion
7 Div. 91.
November 25, 1920. Rehearing Denied January 13, 1921.
Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.
J. M. Miller, of Gadsden, and C. F. Douglas, of Anniston, for appellant.
The paper objected to did not convey the legal title. Section 3355, Code 1907; 69 Ala. 324; 62 Ala. 28; 132 Ala. 148, 31 So. 469. The court therefore properly directed a verdict for the defendant, and erred in setting the same aside.
Tate Logan, of Anniston, for appellee.
The paper was properly attested, and was admissible in evidence on proof of its execution. 122 Ala. 510, 26 So. 152; 95 Ala. 533, 10 So. 345.
The writing offered by the plaintiff to show the transfer of the mortgage by Flora F. Young to Mrs. Emeline House purports to have been made and signed at the foot by Mrs. Young and her husband, H. A. Young, and immediately after their signature the following indorsement appears:
"Subscribed and sworn to before me this 24th day of May, 1918.
"J. T. Gardner, Jr., Notary Public."
This indorsement affirmatively shows that the parties subscribed to the paper in the presence of Gardner, and the manifest purpose of his indorsement was to attest their signature. This was sufficient compliance with the statute (Code 1907, § 3355), to authorize the admission of the paper in evidence on proof of its execution (Jones v. Hagler, 95 Ala. 533, 10 So. 345; Arrington v. Arrington, 122 Ala, 510, 26 So. 152).
The paper dealt with in Dugger v. Collins McRae, 69 Ala. 324, assumed —
"to convey to Collins all right, title, and interest of McRae in the estate, real and personal, of Josephine McRae, deceased, to secure the payment of a note for $620."
In that case it was held that the signature of Peter Lydon did not purport to attest the signature of McRae, but rather the signature of his wife to the writing, joining in the conveyance and relinquishing her dower rights in the property. The court observed:
"The certificate of the justice: 'Sworn to and subscribed before me this 9th day of February, 1872. Peter Lydon, Justice of the Peace' — is appended to the paper and signature of Mrs. Sophia McRae, and contains no reference to the signature of H. C. McRae. The face of the paper indicates clearly that the certificate refers to the last antecedent conveyance" — the relinquishment of dower.
Another view: The efficacious execution of the transfer as a conveyance of the legal title to the land was not essential to its admissibility as evidence in this case; though not so executed, it was admissible to show the assignment of the debt and the power of sale under the mortgage to Mrs. House, vesting in her the right to exercise the power of sale by foreclosure. Code 1907, § 4896; Martinez v. Lindsey and Gay, 91 Ala. 334, 8 So. 787.
It follows, therefore, that the court erred in rejecting the evidence offered by the plaintiff on the trial, and hence properly granted the motion for new trial.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.