Goodlett v. Hansell

BRIGKELL, C. J. It may be admitted, that the original summons, if issued on the Sabbath, would have been abated on plea. It-was not executed on the defendant personally, as was shown by the return of the sheriff, and the issue of an alias was ordered by the court. The alias, wlien issued, became the leading process, compelling the appearance of the defendant when executed. Defects in the original, not [349] entering into it, are not the subject of a plea in abatement to it, and are not available in any mode to defeat it. 2. Under the provisions of our statutes, no conveyance is effectual to pass real estate, unless it is attested by one, and, wbere the grantor cannot write, by two witnesses, or is acknowledged before a proper officer. — Hendon v. White, 52 Ala. 599; O’Neal v. Robinson, 45 Ala. 526. Prior to the Code, a conveyance was ineffectual to pass the legal estate, unless it was under seal. A conveyance not under seal, though it created a perfect equity, and though a court of equity would compel its specific performance, would not authorize the grantee to maintain ejectment for the recovery of possession. It was not even an instrument of evidence in a court of law. — Ansley v. Nolan, 6 Porter, 379; Thrash v. Johnson, 6 Porter, 458. The purpose of the statute (B C. § 2599) is to dispense with a seal, as a constituent of a valid conveyance of the legal estate in lands, and to convert any writing having the necessary constituents of a conveyance, intended as a transfer of the legal title, into a legal conveyance. There is no conflict between its provisions, and the provisions of the former sections, 1535-6. The conveyance, whether sealed or unsealed, must be written or printed, on parchment ox paper, signed at the foot by the grantor, attested by at least one witness, if he writes his name, or, if he does not, by two witnesses, who are able to write; or acknowledged before an officer having authority to take and certify the acknowledgment of deeds. If there had been no further definition by the statutes, of the constituents of a legal conveyance of lands, than is found in sections 1535-6, the common law would have remained of force, and a seal would have been essential, though from the instrument the intention of the grantor to pass the entire legal estate could be clearly "collected. The further provision in section 2599 accomplished its entire purpose, when it is construed, as its heading imports, only as dispensing with a seal, as necessary to pass the legal estate. The rulings of the Circuit Court conformed to these views, and its judgment is affirmed.