Sulzby v. Palmer

70 So. 1, 194 Ala. 524, 1916 Ala. LEXIS 354

• Court: Supreme Court of Alabama
• Decided: January 20, 1916
• Status: Published

Opinion

THOMAS, J. —

Appellant, James P. Sulzby, filed his bill to foreclose a mortgage. Appellee, Mary Palmer, by answer and cross-bill, under oath, denied 'the execution of the notes, and of the mortgage securing the same, and prayed the cancellation of the same as a cloud on her title.

(1) The statute, requiring that a plea, denying “the execution by the defendant, his agent or attorney, or partner, of any instrument in writing the foundation of the suit or the assignment of the same,” must be verified by affidavit, applies to proceedings in equity as to those in courts of law. — Code 1907, § 5332; Bonner v. Young, 68 Ala. 35; Dreyspring, Adm'r, v. Loeb, 119 Ala. 282, 24 South. 734; Noble et al. v. Gilliam, 136 Ala. 618, 33 South. 861; Henderson v. Brown, 125 Ala. 567, 28 South. 79.

(2) Every written instrument, the foundation of a suit, purporting to be signed by the defendant, his partner, agent, or attorney in fact “must be received in evidence without proof of the execution, unless the execution thereof is denied by plea verified by affidavit.”— Code, § 3967.

This provision is extended to proceedings in equity. —Bonner v. Young, supra; Dreyspring v. Loeb, supra; Noble v. Gilliam, supra.

In the case before us, the eighth paragraph of the appellee’s answer and cross-bill is verified by the affidavit of respondent in the court below, and denies the execution of the notes and of the mortgage, foreclosure of which is sought.

We have for consideration, -then, the burden of proof on appellant, to establish the material allegations of the bill, which embraces proof of execution of the notes and of the mortgage the foreclosure of which is sought. The original notes and the mortgage in question are now before us .for inspection. They purport to be signed by appellee. The notes are witnessed by one John T. Hood. The mortgage is likewise witnessed, and contains a certificate of acknowledgment, that may be regular.

It has been the ruling of this court that the body of the instrument may be looked to in aid of the probate. —Bradford v. Dawson, 2 Ala. 207; Gates v. Hester, 81 Ala. 357, 1 South. 848; Frederick v. Wilcox, 119 Ala. 355, 358, 24 South. 582, 72 Am. St. Rep. 925; Stephens v. Middlebrooks, 100 Ala. 283, 49 South. 321.

(3) Where the official certificate of the acknowledgment of a conveyance, the execution of which is not denied by a sworn plea, conforms substantially to the statute, it is presumed to' be true and authorizes the conveyance to be read in evidence.

(4) It is the rule that when a purported deed is shown to have been signed by the grantor, and to' have been acknowledged, and duly certified by a proper officer, and recorded in time in the office of the judge of probate of the county in which the lands lie, and there is no, other proof to weaken the force of these facts, this is sufficient proof of complete execution by delivery, although there is no direct proof of delivery.— Ward v. Ross, 1 Stew. 136; Frisbie v. McCarty, 1 Stew. & P. 56; Fisberry v. Boykin, 65 Ala. 336; Gulf Red Cedar Co. v. Crenshaw et al., 169 Ala. 613, 53 South. 812; Culver et al. v. Carroll, 175 Ala. 469, 57 South. Ann. Cas. 1914D, 103.

(5) In Orendorf v. Suit et al., 167 Ala. 563, 52 South. 744, the court declared that the casual presence of a putative grantor and the possession of an instrument purporting to have been signed are not of themselves sufficient to confer jurisdiction. There must be an acknowledgment, by the grantor of the instrument signed,' before the officer is authorized to certify the acknowledgment. — Byrd v. Bailey et al., 169 Ala. 452, 53 South. 773, Ann. Cas. 1912B, 331.

The statutory rule provided by the act (Acts Spec. Sess. 1909, p. 14) is that: “Conveyances of property, real or personal, or any interest therein, whether absolute or on condition, which are acknowledged or proved according to law, and recorded, may be received .in evidence in any court without further proof; and if it appears to the court that the original conveyance has been lost or destroyed, or that the party offering a transcript, had not the custody or control thereof, the court must receive the transcript, duly certified in the place of the original, unless the reputed maker is in bona fide possession of the property and makes and files an affidavit that the said conveyance is a forgery.”

The statute (Code, § 5332) requiring the verification of all pleas denying the execution by the defendant of an instrument in writing, the foundation of the suit, is as follows: “All pleas in abatement, unless it be a matter of record, pleas which deny the execution by the defendant, his agent, or attorney, or partner, of any instrument in writing, the foundation of the suit, or the assignment of the same, or which set forth any instrument in writing whether under seal or not, which is alleged to be lost or destroyed-, and pleas since the last continuance, must be verified by affidavit.”

(6) Where the statute (Code, § 3697) is complied with by filing the plea of non est factum, the burden of proving the execution of the instrument, the foundation of the suit, is upon the complainant.

(7) The want of an affidavit, to a plea of non est factum is a defect available on demurrer. — McWhorter v. Lewis, 4 Ala. 198; Bryan et al. v. Wilson, 27 Ala. 208; M. & M. Ry. Co. v. Gilmer, 85 Ala. 422, 5 South. 138; Lesser v. Scholze, 93 Ala. 338, 9 South. 273.

(8) In an action on a promissory note, a plea, averring that the date of the note has been changed since the defendant signed it, is a plea of non est factum.— Dexter v. Ohlander, 89 Ala. 262, 7 South. 115; Lesser v. Scholze, 93 Ala. 338, 9 South. 273. So in Milligan v. Pollard, 112 Ala. 465, 20 South. 620, a plea, averring that defendant’s intestate was insane at the time he gave the note sued on, was held to be essentially such a plea.

There can be no doubt that the matter alleged in paragraph 8 of respondent’s cross-bill, added by way of amendment, amounted, in legal effect, to a plea of non est factum; and, if verified by affidavit as provided in section 3967 of the Code of 1907, it prevented the notes and mortgage from being received in evidence without proof of execution by complainant.

What is a sufficient verification was declared in Berry et al. v. Ferguson et al., 58 Ala. 314, where the court stated that the plea must be direct and positive, though the affidavit of its truth may be made on information and belief; that the qualification must not be in the plea, but may be in the affidavit. Again, in McCoy v. Harrell, 40 Ala. 232, it was held that the recital of the plea that the defendant “makes oath that this plea is true,” the record showing that the plea was sworn to before the clerk, is a sufficient verification, although it was signed by his attorney and not by the defendant. In Martin v. Dortch, 1 Stew. 479, 481, it was said that the defendant, by special plea stating the circumstances, may deny the legal effect or the'validity of the bond on which he is sued, and that if the facts averred are, in legal effect, to say that the instrument declared on was not the act of the defendant, is not the instrument signed by the defendant, it is a plea of non est factum, and that a verification thereof, to the best of affiant’s knowledge and belief, would present the issue sought to be raised.

In Winston v. Moffet, 9 Port. 518, Mr. Justice Ormond dismisses this question by saying: “In all cases in which a plea is required to' be sworn to, it may be done by the person swearing to the best of his knowledge and belief.”

To the same effect was the holding in Trustees v. Brown, 3 Ala. 326.

In Tindal, Adm’x, v. Bright, Minor, 105, the Chief Justice said: “The statute requires that the plea shall be accompanied with an affidavit of its truth, but does not prescribe the form and manner in which the matter shall be set forth, or that the affidavit shall be general or special. As affected by the statute it certainly cannot be important whether the party swears generally that his plea is true, or swears to facts from which its truth must necessarily be inferred. * * * It is certainly more safe, both as to' the conscience of the defendant and the rights of the plaintiff, to state the facts specially.”

In Mobile & Montgomery Railway Co. v. Gilmer, 85 Ala. 422, 5 South. 138, the court gave the statute a liberal construction.

It is significant that the early decisions referred to were under a statute providing “that no plea of non est factum shall be admitted to be pleaded, but when accompanied with an affidavit of its truth” (Toulmin’s Digest of Laws of Alabama, § 33, p. 454), and that the later statute (Code, 1907, § 3967) requires no such affidavit of “its truth,” but only that it be “denied by plea verified by affidavit.” This change is found in section 2279 of the Code of 1852, and has been continued in the subsequent Codes as first made. In this we see, not only a liberal construction of the statute by the decisions of our court, but a liberal legislative construction of the verification of such pleas that has continued to the present time.

The cases on this point, cited by appellee’s counsel, are inapt. In Burgess v. Martin, 111 Ala. 656, 20 South. 506, where the plaintiff was praying for discovery and for the appointment of a receiver, the court gave approval to the expression, “has been informed and believes and upon such information and belief charges the fact to be,” etc. Is this not authority for the instant case, when the amendment charges specifically and positively what the facts are, and that affiant “makes oath that this is true?” So, in the case of Smothers v. Meridian Fertilizer Factory, 137 Ala. 166, 33 South. 898, it was held that where the verifica-tion to a bill in chancery is made by counsel for complainant, and the facts therein are alleged upon “his best information and belief,” the same is insufficient, in that it does not amount to a charge that affiant has been informed and believes, and upon such information and belief charges, the facts to be true. In Globe Iron Roofing, etc., Co. v. Thacher, 87 Ala. 458, 6 South. 366, the statute there in question required that the claim of an original contractor or materialman must be verified “by the oath of the claimant, or some other person having knowledge of the facts.”- In each of the cases of Dennis v. Coker, Adm’r, 34 Ala. 611, and Pickle’s Adm’r v. Ezzell, 27 Ala. 623, where the question of the insolvent estates was for decision, the court held that the statute required “all. claims against insolvent estates to be verified by the oath of the claimant, or of some other person ‘who knows the correctness of the claim, and that the same is due,’ ” and that the particular affidavit under scrutiny could not be regarded as a fulfillment of this requisition, “since it does not show that the party [making the proof] has any knowledge either as to the correctness of the claim, or that it was then due.”

(9) In the instant case, the respondent, Palmer, having filed her sworn ansAver and made it a cross-hill, did not thereby undertake the burden of disproving the mortgage on which foreclosure was sought. The statute had declared where the burden of proof rested. The title of the complainant, and his right to a foreclosure, was the issue; and the execution of the notes and of the mortgage was denied by a sworn plea or answer, as provided by statute. When the notes evidencing the indebtedness, and the mortgage securing the same, the execution of which was denied by sworn plea and answer, were offered as evidence by the complainant, the burden was on him to prove respondent’s execution of the same.

(10) When witnesses,-testifying affirmatively of the falsity vel non of the certificate, are interested, their testimony will be scrutinized carefully, in the light of their interest; and when such testimony is full and direct, it is entitled to the same weight that would he given to the testimony of any other interested witness. —Barnett v. Proskauer, 62 Ala. 486; Freeman v. Blount et al., 172 Ala. 665, 55 South. 293.

The testimony of the respondent’s witnesses is full and direct. The defendant and her two daughters are interested, and their testimony should he regarded in the light of their interest. -The testimony of the stepchildren cannot be said to be affected by the same degree of interest. Under the allegations of the bill, Carlos Yeitch was likewise interested in the result of the suit, and his testimony should be tested in the light of that -interest. He made application for the loan, furnished the abstract, paid for it himself, delivered the mortgage to the attorney for complainant, received the money on the mortgage, deposited it in the bank in his name. He explained that it was for the benefit of appellee and her family that he acted, yet his testimony also showed that he had received large sums of his sister’s (appellee’s) moneys from the proceeds of sales of her properties, or those of her husband’s estate, in Mississippi, and deposited it in his own name and expended it in due course as he saw fit, that he had had no settlement therefor with appellee or her children, though requested to account by them. Mr. Yeitch said, in the beginning of his testimony: “I have explained to her that I was going to make this loan, in order to build the house. To the best of my recollection I explained to her I Avas making this loan of Mr. Sulzby in order to> build this house. I told her that I thought she ought to borrow about $1,500.”

His testimony was to- the effect that he was “going to make this loan,” but he did not positively inform his sister that he had made the loan, or when the loan was completed. He did not take the check therefor in her name, did not inform her that complainant had paid the money to him, nor that he had deposited it to his credit at the bank and was using it as he saw fit. When the notes matured he secured the extension of time, and made payment thereon of his own funds. No knowledge was shown in respondent, by Yeitch or complainant, of the maturity of the notes, or of any payment made thereon, till several years thereafter, when Yeitch had ceased to live with respondent. This conduct shows the interest of Yeitch. Touching the execution of the notes and mortgage, Yeitch testified that the signature to the notes and mortgage shown him by counsel was that of respondent, but that he was not present when these papers were executed. On his cross-examination he said: “I did not see Mrs. Palmer sign Exhibits A, B, and C [the notes and mortgage in question].” “I swore on direct .examination that I knew her signature, and that was her signature, to the best of my knowledge.” “I did not see her sign it; therefore I do not know it to be her signature.”

Complainant states that on approval of the title by his attorney he drew and delivered his check for the amount payable to Carlos Yeitch. No- power of attorney or letter of instruction from respondent to complainant, to pay the money to Yeitch, is shown.

An inspection of the small credits indorsed on the notes shows that all the interest was not paid at maturity, and that the principal Avas long past due. Complainant admits that no demand was made on respondent until four years after maturity of the mortgage. Complainant was lending money, and Yeitch was a wholesale grocer. Prom 1904 to 1909 they lived in the same city Avith Mrs. Palmer, yet no- request for payment of the matured loan Avas made on respondent. This was an unusual indulgence,- and one that the evidence does not sufficiently explain, if Mrs. Palmer was looked to for payment. The respondent swears positively that she did not sign the notes or mortgage, nor authorize any one to do- so for her; that the signature thereto was not hers; that she was not before the notary, Jno. T. Hood, and did not acknowledge the signature to- the mortgage before him; that she never saw the notes and mortgage before their exhibition at the trial. Her three stepdaughters and her own daughter each swore positively that the signature to- the notes and mortgage- was not that of Mrs. Palmer, the appellee, and that they were each familiar with her handwriting and signature.

(11) The burden was on complainant to- show the execution of the notes and mortgage, before they were competent evidence. The testimony of the several experts on handwriting did not show the signature to the several exhibits to be that o-f Mrs. Mary Palmer, the appellee. They did no-t know her signature; but they testified that the several exhibits, the notes and the mortgage in question, were signed in the same handwriting. This effort to- prove signature and execution by comparison of handwriting was duly objected to- on the trial.

As early as Little v. Beazley, 2 Ala. 703, 36 Am. Dec. 431, and State v. Givens, 5 Ala. 754, and in the cases of Bishop v. State, 30 Ala. 41, Kirksey v. Kirksey, 41 Ala. 626, Williams v. State, 61 Ala. 33, 39, and Moon, Adm’rs, v. Crowder, 72 Ala. 79, it was held that the comparison of a given handwriting with that of different submitted writings having no connection with the matter at issue, is not permissible. This was the rule declared in 2 Starkie on Evidence, p. 515, and by our court in the recent cases of Washington v. State, 143 Ala. 62, 39 South. 388, and Griffin v. Working Women’s Association, 151 Ala. 597, 44 South. 605. In Griffin v. Working Women’s Association, supra, this court from its former adjudications, declared as the well-settled rule, that: (1) “A comparison of handwriting may not be instituted between the writing that is in question and extraneous papers, although such extraneous papers may be shown to' be genuine. A writing, although admitted to be genuine, when not otherwise relevant and admissible in evidence, is not admissible for the sole purpose of instituting a comparison of handwriting, whether by the jury trying the case or for the expression of an opinion by one examined as an expert witness.”

(2) “When the forgery of a paper is in issue, and another paper admitted or proven to be genuine is properly in the case and before the court, a comparison may be instituted between the signature of the genuine and the signature of the disputed one. The comparison may be made by the jury trying the case, for the purpose of determining the question of forgery vel non of the disputed paper, or an expert witness may also- make a comparison in such case of the two signatures and, after such comparison, express his opinion as to the genuineness of the paper in dispute.”

(3) That nonexpert witnesses may not express an opinion as to' genuineness of signature, unless such witnesses know the handwriting of the party from having corresponded with him or seen him write.

The register erred in admitting, over the objection of the respondent, Exhibits A3 and B3. These documents not being properly before the court, a comparison may not be instituted between the signature thereto and the signatures of Exhibits A. B. and C, for the purpose of 'identification of the signatures to the latter.

On consideration of the evidence, with a due regard for the burden of proof, and without presumption in favor of the finding of the chancellor, we are of the opinion that the alleged notes and mortgage were correctly canceled as a cloud on complainant’s title to the lands described in the mortgage and in the original bill in this case.

The decree of the chancellor is affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Somerville, JJ., concur.