Chastain v. Porter

TYSON, J. The case of Sowell v. Bank of Brewton, 119 Ala. 92, is conclusive of the competency of the attesting witness, Ivey. The fact that the mortgage provided for attorney’s fees or that it was given for a balance due upon a prior mortgage which balance was comprised wholly of attorney’s fees, in connection with the fact that Ivey, the attesting witness, was the attorney of the mortgagee for the purpose of collecting the prior mortgage and conducted the negotiations which resulted in the giving of and the preparation by him of the mortgage which he attested, does not differentiate this case from that one. The attorney’s fee stipulated for did not belong to Ivey, but belonged to the mortgagee. [413] In Houston v. The State, 114 Ala. 15, it was held that without an attesting witness who writes his name as a witness, there can be no valid execution of a mortgage of personal property where the mortgagor signs by mark. In that case, a subscribing witness is defined as “one who was present when the instrument was executed and who, at that time, at the request or with the assent of the party, subscribed 'his name to it as a witness o’f the execution.” Applying this rule to the facts of the case in handy the mortgage should have been admitted in evidence. The mortgagor’s assent to the attestation by Ivey being clearly inferable, its execution should have been submitted to the jury. Plaintiff below, appellant here, having suffered a non-suit on account of an adverse ruling upon a matter of evidence, to which an exception was reserved, we are confined to a consideration of that matter as shown by the bill of exceptions, and cannot revise the rulings of the court below on the pleadings. — Code, § 614; Wyatt, v. Evins, 52 Ala. 285. Reversed and remanded.