Stewart v. Fowler

3 Ala. 629

• Court: Supreme Court of Alabama
• Decided: January 15, 1842
• Status: Published

Opinion

GOLDTHWAITE, J.

1. The first question raised by the assignment of errors’ is, whether the deed, given in evidence in this case, was properly admittsd to record under the statute' Which requires the registration of deeds of trust within a limited-period.

We think this question is similar to one decided in the case of Bradford v. Dawson & Campbell, 2 Ala. Rep. 203, where we considered that a substantial compliance with the requisitions of the statute, would be sufficient. It is true, that the acknowledgment was of a delivery of the deed to the' cestui’que trust, and not to the trustee, who is the grantee named'in-the .deed.

The delivery to the beneficiaries of the trust, we consider equivalent to a‘delivery to the grantee, and'therefore, t he deed was properly admitted to record; it follows then that there was no error in admitting the certificate, as proof of its registration.

■2. The other question' respecting the admission of the grastor, as a witness, to prove the consideration of' the deed', although assigned as error,' is not noticed in the brief submitted ■with the record, and if the case had been argued,-and the counsel had then omitted'to raise the question, we should not have examined it, but according to our course of practice have considered it .as waived. As however, the - case is submitted- on the errors assigned; we do not' feel warranted in- considering the point as waived;

In general, the grantor; is- not' a-competent witness-to support the title of his grantee. Hermance v. Vernay, 6 Johns 5; Pruit v. Lowry, 1 Porter, 101; Holmam v. Arnett, 4 Porter, 63. But with us he is -held an indifferent- witness, when the contest is between an attaching creditor and his own vendee. McKernzie v. Hunt; 1 Porter, 37; Holman v. Arnett, 4 Porter 63.

The case here ■ presented is that of a grantor who has a re* suiting-trust to the excess which shall remain after the application of the property conveyed, to the discharge of the debts secured by the deed of trust; he is-therefore in effect called to support his'own title. •

Nor does the fact, that he was called only to prove the com sideration of the deed; make such a distinction as to-render him competent, because the effect of such testimony may be to sustain his resulting interest, as-well'-as his grantee’s title.

We think he was -improperly admitted-, and' for this'error,the judgment is reversed, and the- cause -remanded.