Rickert v. Touart

DOWDELL, C. J. This is the second appeal in this case; the first to be found reported in 163 Ala. 362, 50 South. 896. The rights of the plaintiff and the defendant respectively hinge upon the validity vel non of the deed offered in evidence by the defendant from Mary Rodrigues, the common source of title, to Margaret Wall. This was attacked by the plaintiff on the trial for fraud in its execution. On this question, the evidence in the last trial is not materially different from what it was on the former trial. [111] We are not disposed to depart from what was said and ruled on the former appeal. The case of Thompson v. New England Mortgage & Security Co., 110 Ala. 408, 18 South. 315, 55 Am. St. Rep. 29, cited in brief and argument of counsel for appellant, is not in our opinion, as contended by counsel, in conflict with our ruling on former appeal in this case. In the cited case, the court undertook only to decide what statements contained in the officer’s certificate of acknowledgment were conclusive and what were not conclusive, in the absence of duress or fraud. It was not intended to decide, where there is an issue of fraud involved in the execution of the instrument, that unessential statements in the certificate are not admissible, and not to be considered as any other attendant circumstance. As stated on the former appeal: “Under the rule laid down in the recent case of Russell v. Holman, 156 Ala. 432 (47 South. 205), the certificate of the notary public, attached to the deeds, ‘was entitled to be considered by the jury as evidence of the facts recited therein.’ ” The inferences afforded by the statements made in the certificate were matters for the jury, and in such cases the giving of the general affirmative charge would be improper. Delivery of a deed may be actual or it may be constructive, and, wherever the intention of the grantor as to delivery becomes as essential question, it is one of fact that properly belongs to the determination of the jury. Under all of the evidence in the present case the question of the delivery of the assailed instrument was one for the jury, and could not be determined as a matter of law, on the general charge. In Fitzpatrick v. Brigman, 130 Ala. 456, 30 South. 502, it was said: “If it (the deed) is duly acknowledged and recorded (and such was true in the case be [112] •fore us), the presumption of delivery attaches, which can he repelled only by evidence of actual dissent of the grantee.” That the deed in the present case was duly acknowledged and recorded was certainly a circumstance in evidence to be considered by the jury upon the question of delivery, and a charge withdrawing this from the jury would be improper. The trial court committed no error in refusing the general charge requested by the plaintiff. There were several other written charges refused to the plaintiff. As to charges 3 and 5, it is sufficient to say, apart from any other consideration, that every proposition of law asserted in these charges was given to the jury in Other charges given by the court at plaintiff’s request. In other words, they find substantial duplication in other charges given. Charges 2 and 4, refused, •were faulty in singling out and giving undue prominence to particular parts of the evidence, if not otherwise bad. While the charge given at the request of the defendant might have been refused for singling out particular parts of the evidence, yet this does not constitute ■the giving of it reversible error; neither does the fact that the charge was of' misleading tendency constitute its giving reversible error. Otherwise the charge was •free from objection. The question of fraud was an issue in the case, and the principle of law asserted in the given charge was correct. Under the rule laid down in Cobb v. Malone, 92 Ala. 630, 9 South. 738, and so often adverted to and followed .in subsequent cases by this court, we are not'prepared to say that the trial court committed error' in denying the motion for a new trial. [113] We find no reversible error in the record, and the judgment is affirmed. Affirmed. All the Justices concur.