Johnson & Co. v. Davis

Johnson & Co. v. Davis. Statutory Detinue for Mides and Wagon, by Mortgagee against Mortgagor. 1. Execution of deed or mortgage ; signature by mark. — A mortgage, or other conveyance, to which the grantor’s name is signed by mark, duly witnessed by a third person who signs his own as a witness, is legally and efficiently executed, although the grantor’s name, he not being able to write, was written by the grantee himself. Appeal from the Circuit Court of Clarke. Tried before the Hon. Wi. E. Claeke, This action was brought by W. J. Johnson & Co., suing as a partnership, against Bevily Davis, to recover a wagon and two mules ; and was commenced on the 10th October, 1889. The only plea was “the general issue, in short by consent.” The plaintiffs claimed the property under a mortgage, or crop-lien for advances, which was dated May 12th, 1888, and to which the defendant’s name was signed by mark, attested by R. W. Davis. W. J. Johnson, one of the plaintiffs, testified in their behalf on the trial, that he wrote the instrument, and also wrote the defendant’s name at the bottom, at his request; that R. W. Davis, the subscribing witness, “read the mortgage and note over to said Bevily Davis, and held the pen while Bevily made his cross mark, and then signed his own name as a witness ; and that R. W. Davis had since died, but witness knew his handwriting, and saw his signature to the instrument. On this evidence, the plaintiffs offered the mortgage in evidence, but the court excluded it, on objection by the defendant; to which ruling the plaintiffs excepted, and then took a non-suit. Jno. Y. KilpatbioK, for appellants, cited Code, § 1; Becldey v. Keenan ds Co., 60 Ala. 293 ; Brown v. Bank, 6 Hill, 443; Wimberly v. Dallas, 52 Ala. 196; Ala. Warehouse Co. v. Lewis, 56 Ala. 514. Geo. W. Tayloe, contra, cited Carlisle, Jones & Co. v. Campbell, 76 Ala. 247. [MAJORITY — MoCLELLAN, J.] MoCLELLAN, J. The case of Carlisle et al. v. Campbell, 76 Ala. 247, is relied on to sustain the ruling of the Circuit Court, to the effect that the paper purporting to be a mortgage, which evidenced plaintiff’s title to the property in suit, had not been efficiently executed by the defendant. But, to our minds, there is such a material difference between the facts of that case and this, as that the principle there declared can not be applied here. In both cases, it is true, the alleged maker of the paper was unable to write his name. In that case, however, the payee not only -wrote the promisor’s name under the obligation, but also made his mark for him; while in this, the agency of the payee, or, more properly, grantee, extended no further than to subscribe the letters constituting the grantor’s name, and the latter himself affixed his mark thereto, thus doing not only all the law prescribes in such cases as necessary for him to do, but all that he could possibly do under the circumstances toward efficiently signing tbe instrument. And tbe subscription tbus made was drily attested, and tbe attestation fully proved on tbe trial. It is immaterial by wbom tbe name is written; it can not be written by tbe grantor, nor, standing alone, could it be tbe signature of tbe grantor. His signature is bis mark, and tbe requirements of law are fully satisfied, if, finding bis name subscribed to an instrument, be set bis mark near it. Tbe sole purpose of tbe name being there at all is by way of identifying and individualizing tbe mark; and tbis purpose can be as fully conserved wben tbe name is written, as is by no means unusual in practice, by tbe other party to tbe contract, as by a stranger; the act of either in so doing being as purely clerical as writing tbe body of tbe paper. Tbe authorities cited in Carlisle et al. v. Campbell all refer to instances where tbe obligee bad acted as tbe agent of tbe obligor in tbe execution of tbe instrument, tbe latter being able to write. Tbe Oircnit Court erred, we think, in bolding tbe mortgage offered in evidence not to have been signed by tbe defendant. Its ruling in that regard is reversed, tbe nonsuit suffered in consequence of it is set aside, and the cause is remanded. Reversed and remanded.