Desha, Sheppard & Co. v. Scales

GOLDTHWAITE, J. Without entering into a consideration of the antiquated learning, with respect to the effectof a. protes-tando in pleading, we shall confine ourselves to the expression of our opinion, that this issue must be considered as involving an inquiry into the execution of the deed. The issue itself is irregular, and more circumscribed than it should have been, inasmuch as the plaintiff in execution is only bound to show that the property levied on was subject, either in whole or in part, at the time of the levy. The claimant only puts in issue his right of property under the deed, when, from our previous decisions, it is well settled, that the interest remaining in the defendant in execution, until the property is taken out of his possession under the deed, is the subject of levy and sale. [Planters’ and Merchants’ Bank v. Wills, 5 Ala.Rep. 770.] Butconceding theissuc heretobe upon the right existing under the deed, we think the plaintiff’s replication cannot be construed as an admission of the execution. In our opinion, it was incumbent on the claimant to prove his deed, and in this view, the case is directly within the decisions of Bradford v. Dawson, [2 Ala. Rep. 203,] Ravises v. Alston, [5 ib. 297.] It is urged, however, that the whole proof does not appear in the bill of exceptions, and as the party could read the deed, or prove it first, according to his pleasure, we ought to intend that it was subsequently proved. The rule is, wo believe, to prove a written instrument when offered as evidence, before reading it.— Our conclusion is, that the deed was improperly admitted upon the certificates of registration. 2. The deed docs not specify with whom the possession of the property is to be, until the default upon which a sale is permitted; but wc think the legal inference is, that the parties intended it should remain with the grantor until he should be in default by suffering the call of the bank for payment, to remain unsatisfied. This was the construction given by the circuit court, and it seems entirely free from error. 3. The other questions, if they are material to be settled, seem [361] to be concluded by the case of Bradford v. Dawson, before cited,- and by the statutes prescribing the manner of taking depositions.- Judgment reversed, and cause remanded.