Sheldon v. Carter

90 Ala. 380

• Court: Supreme Court of Alabama
• Decided: November 15, 1890
• Status: Published

Opinion

STONE, C. J.

We have several decisions which hold that, when a deed of conveyance is subscribed by more names, than one, and some of the subscribers’ names are not shown in the body, or granting clause, such instrument is not the deed of those whose names are omitted from the granting clause,, and shown only in the signatures.—Harrison v. Simons, 55 Ala. 510; Hammond v. Thompson, 56 Ala. 589; Blythe v. Dargin, 68 Ala. 370; Fite, Porter & Co. v. Kennamer, at this term; Agricultural Bank v. Rice, 4 How. (U. S.) 225. In each of these cases, one or more names were expressed in the body of the deed, as uniting in the grant; and-those, and one or more additional names, were subscribed at the foot of the deed. It has been uniformly ruled that a conveyance thus executed is the deed of only those expressed in the body of the instrument, for they alone grant, bargain, sell and convey. Such is the natural interpretation of the language. When an instrument expresses in terms that it is a conveyance by A and B, we would do great- violence to its obvious intent, if we were to hold that 0 also conveyed, merely because his name appears as one of the signers. Expressum faeit, cessare taciturn.

The instrument we are required to interpret in this case is a mortgage. The subscribers to the instrument are Esther Sheldon and John Y. Sheldon. Neither their names, nor any other name, is expressed in the body of the conveyance as a grantor. It recites, “ that for and in consideration of a certain deed of land given, and my promissory note for part price thereof, indebtedness to Gilbert Carter, in the sum of one thousand ($1,000) dollars, due by a promissory note bearing-date January 27, 1888, for one year, and payable January 27-30, 1889: Now, to secure the punctual payment of said indebtedness, we do hereby sell and convey to said Gilbert Carter the following property, to wit: ” &c. Then follows a description of the land conveyed the same- day by Carter and wife to Mrs. Sheldon. ■ The record shows, also, a note which corresponds with description given in the mortgage, except that it is signed by Mrs. Sheldon and her husband. We think this case is taken entirely without the influence of the rule declared in Harrison v. Simons, supra, and the cases which followed it.

In the case of Madden v. Floyds 69 Ala. 221, the title relied on was a mortgage of real estate. In that case, as in this, the name of neither party signing the mortgage appeared at any place in the instrument, except at the place of signing; nor was there other reference to the grantors, than under the general designation of the pronouns, “ I ”, “ my ”, and “ me.” Two names were signed to the mortgage as grantors, and this court held it had been sufficiently executed.

Signing the note and mortgage with his wife was a full compliance with the statute, by Sheldon, the husband. It was certainly a written expression of his concurrence.. — Code of 1886, §§ 2346, 2348; Gindrat v. Montgomery Gas Light Co., 82 Ala. 596. There is nothing in this aspect of the bill.

It is objected for appellants, that Carter contracted to sell to Mrs. Sheldon one lot, with a special and particular descripl tion, and conveyed to her a lot with an entirely different description. There are many reasons why we think there is nothing in this objection. First, neither Mrs. Sheldon nor her husband pretends or claims that the title to the lot is imperfect, or that it is not the identical lot they intended to purchase, and agreed to purchase. Second, while the description of the lot given in the bond is somewhat awkward and difficult to be understood, yet, when considered in connection with the map, the titles of adjacent, co-terminous proprietors, and the changed names of streets, it becomes reasonably certain that the bond and deed describe the same lot of land. Third, if the description in the bond be obscure or unintelligible, or even if it misdescribe the land, it is not claimed there is any error in the deed, which was accepted in discharge of the bond; and this would cure the error, if one had been made. Fourth, after the deed was executed, and until the present bill was filed — more than a year — we hear of no complaint of misdescription, while the lot was given in for taxes as Mrs. Sheldon’s, by her husband as agent, and he also made, efforts to sell it.

Mrs. Sheldon can claim no advantage from her failure to read the deed. It was her privilege, if not her duty, to do so, and public policy requires us to hold her to the same accountability as if she had read it.—Goetter v. Pickett, 61 Ala. 387; Dawson v. Burrus, 73 Ala. 111; Grace v. Adams, 100 Mass. 505; Jones v. Cin., S. & M. Railway Co., 89 Ala. 376.

Affirmed.