Alabama Warehouse Co. v. Lewis

BBICKELL, C. J. A deed conveying lands, at common law, is valid, though the grantor signs only by affixing his mark; nor is it necessary there should be an attestation of the signing. — 3 Wash. Beal Prop. 244-247. The title to personal property will pass without writing, and a verbal mortgage of such property will be enforced. — Morrow v. Turney, 35 Ala. 131. There can be no doubt of the validity of the mortgage made by the appellee (plaintiff below) to Scharff & [516] Mobr, though it is signed only by his mark, and attested by witnesses making their marks, unless we have a statute excluding, or rather prohibiting, the execution in that mode of mortgages of personal property. The statute which, it is argued, must be so construed, is the clause of section one of the Code, which reads, “signature, or subscription, includes mark, when the person cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness.” Sections one to eight are devoted to a definition of words found in the Code. It is not intended to define such words when found elsewhere. If this clause avoids writings, to the validity of which signature or subscription is by mark, and not attested as prescribed, it would not affect a mortgage of personal property, which is valid without writing, and to which the signature of the mortgagor is not required by the Code, or any provision thereof.— Breene v. McCrary, 52 Ala. 154; Wimberly v. Dallas County, 52 Ala. 196. In ruling otherwise, the City Court erred, and its judgment is reversed, and the cause remanded. Stone, J., not sitting, having been of counsel.