Campbell v. O'Neal

81 Ala. 476

• Court: Supreme Court of Alabama
• Decided: December 15, 1886
• Status: Published

Opinion

SOMERVILLE, J.

— The decree of the chancellor, in our opinion, is erroneous, on the ground that it is not supported by the evidence. The proof of the execution aud of the contents of the mortgage was unsatisfactory. This conveyance, not having been acknowledged or proven in the mode required by tbe statute, was not entitled to be proved by a transcript of the record where it was registered. This privilege is accorded only to such conveyances as are acknowledged or proven according to law — a class to which tbe one under consideration does not belong. — Code, 1876, §§ 2154, 2158, 2160. Nor was the alleged transcript, which was secondary evidence, admissible under the provisions of section 3036 of the Code, without proof of the execution of the original, merely because there was no plea filed denying under oath its execution. If this statute includes a mortgage, which is sought to be foreclosed in a court of equity, it has reference only to receiving in evidence, without proof, the original, not a copy — especially a copy not proved to be a true one.

The defect in the evidence lies in 'tbe fact that the alleged transcript is not proved to be a correct copy of the original, and the oral testimony offered fails to satisfactorily show the loss and contents of the original mortgage, its execution, or continued existence. The question is one, therefore,, having reference more to the sufficiency of the proof than to the mere grade of the evidence.

For this defect or failure of proof the decree must be reversed, and a decree will be rendered.in this court dismissing the bill, but without prejudice.