Holloway v. Henderson Lumber Co.

69 So. 821, 194 Ala. 181, 1915 Ala. LEXIS 259

• Court: Supreme Court of Alabama
• Decided: October 14, 1915
• Status: Published

Opinion

Anderson, C. J.—

(1, 2) This court has repeatedly held that after a bill of exceptions has been signed and has become a part of the record, and the term at which the case was tried has expired, the same is beyond the control of the judge, and he has no power to alter or amend same. — Briggs v. Tenn. C. & I. Co., 175 Ala. 130, 57 South. 882, and cases there cited. This court has never held, however, that the trial court cannot at another term correct it, like other parts of the record, as to clerical errors or omissions, so as' to make it speak the truth. In the case of Branch Bank v. Kinsey, 5 Ala. 9, this court held that the judge had no power or control over the hill of exceptions after it had become a part of the record and the term had expired, but it was said in the opinion: “It would doubtless be competent for the court, at a succeeding term,'on sufficient evidence, to amend a bill of exceptions, as it could any other part of the record nunc pro tunc, so as to make it speak the truth of the case.”

True, this question was not decisive of the case there under consideration, and may therefore be dictum, but it was nevertheless the declaration of the general, and what seems to be a proper, rule. — 3 Cyc. 50; 3 Am. & Eng. Enc. P. & P. 502-506. Of course, the correction must relate to some clerical misprision or omission in the .record, and must not rest in parol, but upon record or quasi record evidence. Here the deed had been introduced in evidence and was in the file of the papers in thei trial court, and in copying the said deed into the bill of exceptions by a clerical error the township and range was omitted, which omission was not discovered until the bill of exceptions had become a part of the record. The trial court upon proper motion at the succeeding term, with the.record evidence of the original deed, at the time a court paper in the case, corrected this clerical omission so as to make the record speak the truth. This it not only had the authority to do, but such course was essential to the administration of justice. It would be a hard and narrow holding that would deprive trial courts of the power to rectify such trivial errors and misprisions when there is undisputed record evidence correcting the same. To hold that the trial court could not rectify this error, and that the appellant must lose his case solely because of the omission from the bill of exceptions of the township and range, when the original deed was on file and did contain it, would but subordinate merit and justice to technicalities, which should not be sanctioned by courts of modern civilization — courts created and. intended for the administration of justice, settling legally, but meritoriously, all controversies involving the life, liberty, property, and happiness of our citizens. The motion to strike the amendment from the bill of exceptions is overruled.

This holding is not in conflict with the case of Briggs v. Tenn. Co., supra, as we did not there hold that a bill of exceptions could not be amended nunc pro tunc by the court at a subsequent term. Nor is it in conflict with the holding of the majority as to amendable defects. The writer did not agree to the holding of the majority, as was the case with two other members of the court, but the majority opinion recognizes the power of the court to make amendments upon proper evidence; they seemed to be of the opinion that the amendment there was based upon parol evidence.

(3-5) The plaintiff proved a complete paper title to the land, which the defendants sought to overcome by a tax deed and subsequent conveyance and adverse possession thereunder. The tax deed from Judge Riley was imperfectly acknowledged, and was not, therefore, validly executed under the terms of section 593 of the Code of 1886, the statute governing same. It did not authorize the mere execution of a deed, or one to be acknowledged or attested, but one to be acknowledged. The deed was not therefore sufficient to transmit the title under the tax sale. Nor was it prima facie evidence of the facts recited therein, and is not made so by section 3382 of the Code of 1907, as this last section relates to the transcript in evidence of validly executed conveyances which have been of record for 20 years, though not so acknowledged as to make them self-proving. This statute was not intended to make the registration of an instrument for 20 years a valid.deed which was not a valid deed when made. The trial court in the oral charge properly held that the deed, in and of itself, did not give the title to the land into the grantee therein, but that it was color of title. The evidence was in conflict as to whether or not the defendant and those under whom it held were in adverse possession of the land for 10 years prior to the commencement of the suit, and this issue was properly submitted to the jury: But the trial court, in its oral charge, and by refusing some of the plaintiff’s requested charges, in effect, held that 3 years’ possession under the deed would bar the plaintiffs from recovering, and in this there was reversible error. The limitation prescribed as a bar to action for lands sold for delinquent taxes does not begin to run until the deed to the purchaser by the probate judge is legally executed and recorded. — Flowers v. Jernigan, 116 Ala. 516, 22 South. 853. The deed in question was recorded, but it was not legally executed.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Mayfield, Somerville, and Thomas, JJ., concur.