Ballow v. Collins

McCLELLAN, C. J. — To prove the execution of a writing the signature of the maker must, of course, be proved. Where the maker cannot write his name to the paper its execution is effected by his setting his mark against his name as written for him, and by the attestation of a witness who can and does write his name. When this is done the signature of the maker is not merely his name thus written with his mark set against it, but an essential and inherent part of his signature is the signature of the other person as a witness. It requires all of this to constitute the signature of such illiterate maker, and all of it must be proved before it can be said that the execution of the paper is proved. [546] Code, §§ 1, 2151. It is difficult to conceive bow an illiterate person can testify to the signature of another person at all; but assuming that to be possible, there is no pretense here of testimony on the part of the maker, Garter, to the effect that the persons whose names appear as witnesses on the paper in fact signed their names, and no other witness was examined in that connection. The execution of the mortgage purporting to have been executed to Collins by Garter was, therefore, not proved; but in the absence of objection by the plaintiff the court would not have erred in receiving it in evidence, or, at any rate, the error, if any, would not be available to the appellant. Certain objections were interposed, but they were upon specific grounds which did not reach the infirmity of proof we have been considering. The objections to the testimony of Garter and to the admissibility of the mortgage made when it was offered in evidence were the following: “First. — Because said mortgage is attested by subscribing witnesses, and neither are called, or their absence accounted for. Second. — Because said mortgage is signed by mark, and it is not shown how the witness identified the same. Third.— his That said mortgage is signed ‘Henderson X Garter,’ and mark it is not shown how or in what manner the witness identified the same.” There is no merit in the first objection since under the statute — Code, § 1797 — the execution of the paper was provable by the testimony of the maker without producing or accounting for the absence of the attesting witnesses; but, of course, where the instrument is valid only when witnessed, the maker must testify not only that he signed it, but also that the witness subscribed it as a witness. — Hayes v. Banks, Admr., 132 Ala. 354.- The second and third objections thus interposed were also without merit. At that time the witness, Garter, had testified only and point blank that he signed this mortgage, or, in effect, that he made his mark to it as and for his subscription to it. Though he was unable to read — which, however, does not appear — and to [547] write — which, appears only inferentially from the manner of his subscription — it might well be that he recognized and identified the paper by some physical mark, or peculiarity of it apart from the writing it contained; and it was not incumbent upon the defendant to show how and why and by what means the witness knew the fact to which he deposed, that he had signed that particular writing. After this mortgage had been introduced in evidence, however, it was made to appear by the further testimony of this witness — wé suppose, on cross-examination, though that is immaterial — that he had made his mark by way of signature to only one mortgage to Collins, but that in point of fact he had no knowledge as to whether this mortgage was the one he had signed. His testimony was “that the way he identified the mortgage was because Mr. Collins told him that it was the mortgage that he signed, and that he never gave Mr. Collins but one mortgage during” the year of the date of this mortgage. Thereupon, the plaintiff moved to exclude the mortgage from the evidence on the ground above stated, and upon the further ground that “said mortgage has not been sufficiently identified by the witness.” In our opinion, this motion should have been granted. The witness only knew that he had signed one mortgage to Collins. He had no knowledge that this was the one. Collins had told him this was the one, and upon that information solely he had at first stated that he had signed this one; but that statement by Collins was not evidence in the case, and the witness's reference to it as the only basis for his testimony as to the signing of this one demonstrated his utter want of knowledge that he had signed this one. The inquiry being whether he had made his marie to this mortgage, the whole effect of his testimony was that he had signed a mortgage, but whether this or another he did not know. He failed to identify this as the paper he had set his name to, and the objection made was pertinent and apposite. The failure of the proof to identify this as the paper to which he had set his mark was essentially a failure of the proof attempted to be made of the execution by him of the mortgage. Its execution not having [548] been proved, tbe court erred in overruling plaintiff’s motion to exclude it from tbe evidence. Reversed and remanded.