PARSONS vs. BOYD

PARSONS vs. BOYD. 1. To maintain detinue, the plaintiff must show that he has the exclusive legal title to the chattel sued for. 2. The statute of this State -which abolishes the right of survivorship between joint tenants, (Olay’s Digest, 169,) applies only to those who hold the absolute property in their own right, and not to those who hold as trustees merely, or in autre droit. 3. If a power coupled with a trust be given to two or more, it may be executed by the survivor of them. 4. When personal property is conveyed by deed of trust to two trustees, with power to sell and pay the debts intended to be secured, the survivor of the trustees has the entire legal title to the property, and may maintain detinue for its recovery. 6.It is not essential to the probate of a deed that it should be proved to have been executed on the day of its date. It is prima facie sufficient, if the date of the deed and the date of the certificate of probate show that the instrument was recorded within the túne required by law. 6. A recital in the certificate of probate that the grantor acknowledged the deed “to be his free act and deed,” is tantamount to saying that he “ signed, sealed and delivered ” it. 7. When the endorsements on a deed show at what time it was left with the clerk for registration, and the book and page in which it is recorded, and these endorsements appear to have been made by the clerk, there is a substantial compliance with the statute, (Clay’s Digest, 15S, § 23,) and the endorsements may be read in evidence. 8. The admission of improper evidence against a party furnishes no ground of reversal, when no injury can by possibility result from its admission. 9. A deposition will not be suppressed because the Christian name of the witness is not stated in the affidavit made to procure the issuance of the commission, when the commission and notice so describe and identify the witness as to preclude the idea that the opposite party could have been misled or injured by the omission. 10.When a deposition appears on its face to have been regularly taken, and there is nothing in the commission or notice to show that it was illegally or irregularly taken, a motion to suppress it, on the ground that the notice of the time and place of executing the commission was insufficient, is addressed to the sound discretion of the primary court, and its action cannot be reviewed on writ of error. 11. An attorney will be presumed to have read a declaration to which pleas are filed in the name of a firm of which he is a partner; and the record of the suit in which such proceedings were had, is admissible evidence in a subsequent suit against the attorney, to prove actual notice to him of the plaintiff’s title, as set out in said declaration. Error to tbe Circuit Court of Talladega. Tried before tbe Hon. E. Pickens. Alex. "White, for plaintiff in error: 1. The deposition of “Mrs. Beese” should have been suppressed, because her Christian name is not set forth in the affidavit, nor in the fiat of the judge authorizing it to be taken. The clerh inserted it in the commission upon his own authority. The design of the statute, in requiring the affidavit to disclose the name of the witness, is too obvious to require comment, and with equal propriety it might omit to state, “ the testimony may be material ” to the party. Clay’s Dig. 165, § 1. The fact that there was but one “ Mrs. Beese ” in the county, known to the Avitnesses who were offered to aid this defect, and the further fact that “ Mrs. Beese ” was well known .to plaintiff and his counsel, can have no influence in settling a general rule of law, for 11 the right to talce testimony by deposition must he exercised in strict conformity with the statute.'1'1 Parker v. Haggerty, 1 Ala. Bep. 633. Again: the judge’s order directs that notice of the time and place of executing the commission shall be given “ by 11 o’clock, A. M. of that day,” and that a commission shall issue to take her deposition “ between the hours of 7 and 9 o’clock, A. M., on Monday next.” Neither of these commands havebeen complied with. The return of the sheriff shows the notice was executed on that day in general terms, and the statute provides that “ such notice of the time and place shall be given, as the judge shall think proper,” Clay’s Dig. 164, § 2. The commission, instead of conforming to the judge’s order, which was the clerk’s only power to act, to take the deposition “between the hours of 7 and 9 o’clock, A. M., of Monday next,” is general in its terms, and authorizes the commissioner therein named to call the witness at any time. For these irregularities the deposition should have been suppressed, notice of the motion having been duly given, and the party not having had an opportunity to cross-examine the witness. 2. The deed from Bell to Boyd and Taliaferro should not have been received in evidence as a recorded deed. The certificate of the clerk is, that Bell acknowledged it to be “his free act and deed.” This does not conform to the statute either in form or substance, see Fipps v. McGrehee, 5 Por. 434; and Shelton v. Armor, 13 Ala. 652. This last is directly in point, for tbe deed was offered as a recorded deed. In McCas-kle v. Amarine, 12 Ala. 22, tbe court says, “tbe registration cannot be regarded as an official act, so as to operate a constructive notice.” Tbe certificate of acknowledgement must be, “ given under my hand and seal.” Clay’s Dig. 153, § 7. It is by tbe first section of tbe act of 1818, Digest, 153, § 10, that clerics are authorized to take and certify acknowledgments of deeds of conveyance, “ in Wee manner and form as is novo required by law before judges.” Again: there is no certificate whatever in conformity with tbe statutes above referred to, showing that tbe deed was ever recorded or left for record. Tbe memoranda, “recorded,” “Jas. E. Belser, C. C. M. C.” is not sufficient, and this court has in effect decided as much, Dubose v. Young, 10 Ala. Bep. 368. In that case tbe point was, whether tbe clerk could certify tbe fact that tbe deed bad been recorded, or left for record, but tbe court will observe, that tbe certificate was in tbe proper form. The improper admission of merely cumulative evidence is sufficient to reverse a judgment, see Jones'v. Eaikner, 12 Ala. Bep. 165. Upon tbe question of an official seal, see Phillip’s Ev. C. & H. Notes, Part 2, Yol. 3, 1130. 3. Tbe writ, declaration, &c. in the case of Boyd v. Bell, was wholly incompetent as evidence against tbe plaintiff in error. The fact that be was one of tbe legal firm, whose name appeared as counsel for Bell in that suit, does not charge him with notice of Boyd’s title. That would be carrying tbe doctrine of constructive notice quite too far. In fact, nothing will supply tbe place of actual notice, unless it is so declared by statute. Tbe proceedings and record of a cause are only evidence between parties and privies. Tbe plaintiff in error claims under Pharr and Beck, and adversely to Boyd, see Davis v. Wood, 1 Wheaton, 6 4. Tbe deed from Bell to Boyd and Taliaferro, under which Boyd makes title, should have been excluded, because by tbe deed which conveys land and negroes, Boyd and Taliaferro became joint tenants. Tbe title which vested in them under it, possessed all tbe requisites of joint tenancy, viz: “ unity of interest, title, time and possession,” see 2 Yol. Black Com. marginal, 180. By our statute, when two or more persons bold an estate, real or personal, jointly, and one joint tenant dies before severance, bis interest shall not survive to tbe remaining joint tenants, but shall descend to and be vested in bis heirs or legal representatives, in tbe same manner as if bis interest bad been severed and ascertained, Clay’s Dig. 169, § 6. Therefore, it is insisted'in this case that by tbe death of Taliaferro, bis legal representative became a necessary party to this suit as plaintiff with Boyd; because, in actions of detinue, “it is well settled in this State, that to recover, tbe plaintiffs must have tbe entire interest in tbe thing sued for.” Price v. Tally, adm’r, 18 Ala. 25; Miller v. Eastman, 11 Ala. Rep. 609-14; Hogan v. Bell, 1 Stew. 536 ; and in Knight v. Leek, 2 Dev. & Batt. 183, tbe personal representative was actually made a party plaintiff, and tbe judgment which be, in connection with tbe other joint owner, obtained, was affirmed. See also Mason v. Maury, 8 Por. 233; Boyatt v. Kerr, 7 Ala. Rep. 15,16; see also Sugden on Powers. But it is said, here is a power coupled with a trust, and that under such circumstances tbe power survives, therefore tbe estate must also. Let it be conceded tbe power survives, and it by no means follows that tbe estate does. First, because they are separate and distinct, arising at different times and by different means. Tbe estate is joint, and created by tbe deed, and it vested immediately on its execution. Tbq power is joint also, but did not arise until tbe law day of tbe deed. Tbe statute operates on tbe estate conveyed by tbe deed, but does not interfere with tbe power. And as both must have joined in this action while living, our statute is designed to secure tbe same unity in a suit brought after tbe death of one. Suppose both were dead; in that event, would it be contended that Boyd’s legal representative could recover, and be only. Tbe rule we contend for is far more just and reasonable. 5. If this position is not tenable, we then insist Boyd should have set forth, not Ms title, but tbe character in which be sues; he should have sued as survivor. Suppose one who is executor or administrator should bring an action of detinue for a slave, belonging to tbe estate which be represented, in bis own name, without setting forth tbe character or right in which be sued, could be recover ? Most unquestionably be could not. Tbe outstanding title in tbe estate would defeat bim, and tbe only fact wbicb would show that its rights are vested in bim, could not be proven by bim, because he has not sued in that character. Thus, in tbe case at bar, this deed vested tbe estate jfointly in Boyd and Taliaferro ; if, notwithstanding our statute, by tbe death of tbe latter tbe whole estate survived to Boyd, then, in order to show tbe fact, be must sue in tbe character of survivor. "WOODWARD & Belser, contra: 1. Tbe deposition of Mrs. Beese should not have been suppressed. Olay’s Dig. 167, §§ 12, 17. 2. Tbe deed of Bell to Boyd and Taliaferro, with tbe certificate of tbe clerk, and bis other memoranda, were properly read in evidence, and it was constructive notice. Herbert v. Hanrick, 16 Ala. Bep. 597; Dubose v. Young, 10 ib. 369; Hobson v. Enssam, 8 ib. 357; Olay’s Digest, 155, § 23; 18 Ala. Bep. 668. 3. But if Pharr and Beck and Parsons did not have constructive, they bad oral notice, and that was sufficient. 12 Ala. Bep. 646 ; Allen v. Bailroad Oo. 11 ib. 438. 4. Boyd could maintain tbe action at law. Tbe power conferred on bim was one coupled with an interest, and it survives. 12 Ala. Bep. 673; Peters v. Beverly, 10 Peters, 533; Taylor v. Benbam, 5 Howard, 233; Williams v. Otey, 8 Hump. 563 ; Franklin v. Osgood, 14 Johnson, 553; Burnett v. Pratt, 22 Pick. 556. 5. Where tbe power is a naked one, tbe court will observe the utmost strictness as to its execution, but where it is connected with an interest, they will construe liberally, that the interest may be protected. Taylor v. Benbam, 5 Howard, 233; Peters v. Beverly, 10 Peters, 533. 6. Our statute as to non-survivorship apphes to absolute estates only, and not to such an estate as Boyd claims in this case. Besides, Taliaferro’s heirs have no interest in tbe matter. He did not pay any part of tbe debt. Olay’s Dig. 169, § 6; Appleton v. Boyd, 7 Mass. 134. 7. Boyd in tbe pleading need not describe himself as survivor. Vanderbeuvel v. Storrs, 3 Conn. 207. 8. If tbe deed from Bell to Boyd and Taliaferro is notice, tben tbe question of notice is at an end, because all tbe parties are bound by it. Tbe attempt to fix oral notice on Parsons below is not cumulative. The deed is good as constructive notice, or it is not, and tbe oral notice was proper independent of it. Allen v. Railroad Co. 11 Ala. Rep. 438. 9. There is no question raised on tbe record as to "Watson’s not baying notice. Tbe only motion was to exclude evidence oral, going to show notice to Parsons. Tbe evidence was permissible. If any question had been raised as to want of notice to Watson only, the plaintiff then might have been bound to prove it, but not otherwise. [MAJORITY — DARGAN, C. J.-] DARGAN, C. J.- -This is an action of detinue, wbicb was commenced by tbe plaintiff to recover of tbe defendant a slave by tbe name of Dick. Tbe plaintiff, to show title to tbe slave, read in evidence a deed executed by B. W. Bell, by wbicb several slaves, one of wbicb was tbe slave in controversy, and a tract of land, were conveyed to tbe plaintiff and one Thornton Taliaferro jointly, for tbe purpose of securing the said plaintiff and Taliaferro against their liability as endorsers of a bill of exchange, wbicb bad been drawn by Bell, and endorsed by tbe grantees in tbe deed, Boyd and Taliaferro. This deed gave to tbe grantees tbe power to sell tbe property conveyed thereby, for tbe purpose of paying said bill of exchange, and indemnifying themselves. It further appeared that Taliaferro bad died before tbe commencement of this suit! Upon these facts tbe question was made by tbe defendant, whether tbe plaintiff could bring detinue in bis individual right and recover. Tbe law is settled, that in tbe action of detinue tbe plaintiff must show an exclusive legal title to tbe chattel sued for; and should it appear that be was but a tenant in common, or a joint tenant with another, and that tbe legal title was in both, tben both must join in detinue, for one alone cannot, under such circumstances, sustain tbe suit. Hogan v. Bell and wife, 1 Stew. 536; Miller v. Eastman, 11 Ala. Rep. 609; Price v. Talley’s adm’r, 18 Ala. Rep. 21. But we are entirely satisfied that tbe deed from Bell to tbe plaintiff and Talia-ferro, connected with proof of Taliaferro’s death before tbe suit was brought, shows that the plaintiff has in himself the entire and exclusive legal title to the slave in controversy. Our statute, it is true, has done away with all joint tenancies, as known at the common law, and declares that when two or more persons shall hold an estate, real or personal, jointly, and one joint tenant dies before severance, his interest in the joint estate shall not survive to the remaining joint tenant or joint tenants, but shall descend to, and be vested in, his heirs or other legal representatives, in the same manner as if his interest had been severed and ascertained; Clay’s Dig. 169. This act, however, only applies to such joint tenants as hold the absolute property in their own right, and not to those who hold as trustees merely, or in autre droit The evil that our statute intended to remedy was, to cut off the jus accreseendi, or right of survivorship, which existed at the common law, and to give to the heirs at law of joint tenants the interest of their ancestors, in. the same manner as if they had held as tenants in common, and not as joint tenants. It was thought unreasonable that the death of one joint tenant should give the entire estate to the survivor for his own use, to the exclusion of the heirs or next of kin of the deceased tenant. But when the tenants hold as trustees for particular purposes, or in autre droit, and can gain no advantage to themselves by the right of survivorship, then they are not within the reason of the statute, nor does the evil exist which it intended to remedy, for no profit or benefit will result to the survivor, and although he take, by the death of his co-tenant, the entire legal title, yet he will hold it as trustee, or in the right of another, and for his use and benefit. Joint trustees are not within the reason of the statute, nor the evil intended to be remedied by it, and to hold that their joint title is affected by the act, could be productive of no good; it could avoid no evil, but, on the contrary, might often lead to protracted litigation, and serious injury to the trust estate. It is a well settled principle of law, that if a power, coupled with a trust, be given to two or more, it may be executed by one who has survived the others. Hawkins v. May, 12 Ala. Rep. 673; Taylor v. Benham, 5 How, 233; Peters v. Beverly, 10 Peters, 582; Franklin v. Osgood, 14 John. 527. Boyd, therefore, had the right to execute the trust by selling the property conveyed, by the deed, and if the right to execute the trust was exclusively in Boyd, if this power survived to him notwithstanding the statute, it is clear that he must be held possessed of such title as will enable him to execute the trust; and this must be the exclusive legal title, for he alone had the power, upon the death of Taliaferro, to sell the property. We are, therefore, of the opinion that the evidence showed that the plaintiff had the entire legal title. It is again insisted that the acknowledgment of the deed of trust, as appears from the clerk’s certificate, was not sufficient to authorize its registration under our statutes, and consequently that the deed is void as against the defendant, who claims to be a purchaser, deriving his' title from Bell, the grantor in the deed. The deed bears date on the 28th day of March, 1838, and the certificate of acknowledgment is as follows: “ The State of Alabama, Montgomery County: I, James E. Belser, Clerk of the County Court of said County, do hereby certify, that on the 28th day of March, A. D. 1838, the above named Bushrod W. Bell personally appeared before me, and acknowledged the above and foregoing instrument to be his free act and deed, for the purposes therein expressed and contained. Given under my hand the day and year above written. James E. Belser, Clerk C. C. M. C.” The first objection to this certificate is, that it does not expressly allege that the grantor executed the deed on the day of' its date. But this objection cannot prevail; the very same point was made in the case of Bradford v. Dawson, 2 Ala., 203; and it was there decided that the certificate of acknowledgment was sufficient. The same question again came up in the case of Hobson v. Kissam, 8 Ala., 357; and again in the case of Herbert v. Hanrick, 16 Ala., 597; and in both of these cases, it was held not to be essential to the probate of a deed, that the proof or acknowledgment contained in the certificate should show that the deed was executed on the day it purports to bear date. The statute, it is true, gives a form, and in this form thus given, it is required that the proof should show that the deed was executed on the day of its date, Clay’s Dig., 153; but the same statute provides that the certificate or acknowledgment of a deed shall be good, if it contains the substance of the form thus given, whether it be in tbe form or not. W e could not, therefore hold this certificate defective, without holding that it was matter of substance that the certificate should show that the deed was actually signed and delivered on the day of its date. But the mere date of a deed is not matter of substance, for it may be shown to have been executed on a different day from the day of its date; it takes effect from its delivery, and not from its mere date. Under this statute and the decisions to which we have referred, we think it clear that the proof required, before a deed should be admitted to record, need not show that the instrument was executed on the day it purports to bear date. It is prima fade sufficient at least, if the date of the deed and the date of the certificate of probate show that the instrument was recorded within the time required by law. The next objection to the certificate is, that it does not use the words “ signed, sealed and delivered,” but simply that the grantor “ acknowledged it to be his free act and deed.” This objection is also unavailing; the acknowledgment that the instrument was the free act and deed of the grantor, is tantamount to saying that he signed, sealed and delivered it. It is further insisted that the court erred, in permitting the endorsements on the back of the deed made by the clerk, showing when the deed was left with him for record, and the book in which it was recorded, to be read as evidence. These endorsements are as follows: “Rec’d for registration, March 28th, 1838. Jas. E. Belser, C. C., M. C. Recorded in book O., pages 708, 709, April 23rd, 1838, James E. Belser, C. C , M. C.” The act requires that the clerk shall give a receipt to any one who shall leave with him a deed to be recorded, and further requires that he shall certify on or under such deed or conveyance the day of the month and year when he received it, and the name or number of the book and the page or pages in which it is recorded. Clay’s Dig. 155, § 23. The form of the certificate required by this section of the act is not prescribed by the statute, and we are unwilling to lay down any particular^ form as indispensably requisite. All that this section of the act requires, in my judgment, is this, that the endorsements on, or under the deed, should show when the deed was left for registration, and the book and page in which it is recorded, and these endorsements should appear to be made by tbe clerk. When this is done, there is a substantial compliance with this section of the act, and nothing more is necessary to entitle these endorsements to be read as evidence, showing when 'the deed was left for regis- ■ tration, and the book in which it is recorded. These reasons bring us to the conclusion that the deed was duly registered, according to the provisions of our several acts, and consequently operated as constructive notice to all subsequent purchasers who derive title from or under Bell, the grantor. Attaining this conclusion, proof of actual notice of the deed to the defendant, and those under whom he claims, was an immaterial inquiry; for whether they had such actual notice or not, could in no wise affect the plaintiff’s right to recover. They were charged with notice by operation of law, and it was unnecessary to prove notice otherwise. If, therefore, it were admitted that the evidence relied on to prove notice actually given was inadmissible for this purpose, still it could not be such an error as would work a reversal of the judgment; for we have heretofore held, and upon reasoning entirely satisfactory, that when no injury can by possibility result to a party from the admission of improper evidence against him, it furnishes no ground of reversal. Herbert v. Hanrick, 16 Ala. Supra. It is true, that we must be able clearly to see that no injury could have resulted from the admission of such evidence, and if we cannot clearly and beyond doubt see this, then we must reverse, for we would not know whether injury had resulted from the errror or not. In the case before us, it is difficult to perceive how the plaintiff’s right to recover could be affected, whether Pharr & Beck, through whom the defendant claims, had actual notice or not, of the deed of trust through which the plaintiff derives his title, before they acquired their mortgage from Bell; and we should, therefore, be inclined to affirm the' judgment, even if the deposition of Mrs. Reese, who was examined to prove actual notice, ought to have been suppressed, for under the circumstances as presented by the record, the right of Boyd to recover appears to be entirely independent of the fact whether Pharr & Beck had actual notice or not. But as the ruling of the court in refusing to suppress the deposition has been argued on both sides, and treated as an important question, we propose to examine it. Two objections were made to the admission of this deposition; first, that the affidavit upon which the commission was granted does not disclose the Christian name of the witness; and secondly, that the notice of the time and place of taking the deposition was insufficient. The affidavit discloses that she is a material witness, and that she resides about twenty-one miles from Talladega Court Horrse. In the commission her Christian name is given Mrs. Eliza Eeese, and the notice also gives her name in full. Now, conceding that it is necessary to make an affidavit before a commission to examine a female witness can be issued, yet we think this affidavit sufficient: it points with sufficient certainty to the witness intended to be examined, and this is all that can be necessary, especially when we see that the commission and notice so describes or identifies the witness, as to preclude the idea that the defendant could have been misled or injured by failing to insert her Christian name in the affidavit. Nor is there any error in refusing to suppress the deposition, on the ground that the notice of the time and place of executing the commission was insufficient. In the case of Cullum v. Smith & Conklin, 5 Ala. 625, this court held that though the Circuit Court might., under peculiar circumstances, suppress a deposition which was regularly taken, yet its refusal to do so was the exercise of a discretion which could not be reviewed by writ of error. This authority is conclusive, to show that this objection cannot be sustained, There is nothing on the face of the commission, the notice or the deposition itself, to show that it was illegally or irregularly taken ; nor does the evidence introduced upon the trial of the motion in the slightest degree impugn the regularity of the deposition. The question, therefore, whether it should have been suppressed or not, was exclusively one of discretion in the Circuit Court, and cannot be made the foundation of error in this court. The only remaining question grows out of the admission of the record of a suit brought by Boyd against Bell, to recover of him the slaves conveyed by the deed of trust. It appears that the defendant was one of the attorneys of Bell in the defence of that suit, and the pleas to the decía-ration in tbat case are signed by the defendant and Mr. White. The declaration, too, set forth the title of the plaintiff, and describes substantially the deéd of trust by which the plaintiff derives bis title to the slaves in controversy. Tbat this record is a circumstance, tending to prove tbat the defendant bad actual notice of the deed of trust before be purchased the slaves conveyed thereby, we cannot doubt. We cannot infer tbat the defendant never read the declaration, to which be as an attorney filed pleas; indeed, the legal intendment must be otherwise. It is possible tbat Mr. White, the defendant’s partner, alone read the declaration, and filed the pleas in the name of White & Parsons as attorneys; but in the absence of proof on this subject, we must infer tbat the defendant read and knew the contents of the declaration; consequently, be was sufficiently apprised of the plaintiff’s title before be bought the slaves, to put him on inquiry. We can see no error in allowing tbe record to be read as evidence for this purpose, and consequently tbe judgment must be affirmed.