Gilley v. Denman

SOMERVILLE, J. The appellee brought an action of ejectment against W. L. Gilley in August, 1910. In September, 1911, John A. Brown, on his own motion, was “made defendant in this case instead of W. L. Gilley,” as the judgment entry recites. The bill of exceptions shows that only one defendant participated in the trial, and reserved exceptions to the rulings of the court, and the judgment is “that the plaintiff, J. A. Denman, have and recover of the defendant, John A. Brown, the land sued for,” etc. The appeal, as shown — 566 — by the bond and certificate in the transcript, was taken and is prosecuted jointly by W. L. Gilley and J. A. Brown; and all alleged errors are jointly assigned by them. Had the judgment run against Gilley and Brown jointly, the assignments of error could not be sustained as to Gilley; and, if bad as to him, they would be overruled as to both appellants. This is a rule of appellate practice often declared and constantly enforced by this court. — McGehee v. Lehman, Durr & Co., 65 Ala. 316; Kimhrell v. Rogers, 90 Ala. 346, 7 South. 241; Beacham v. A. S. P. Mfg. Co., 110 Ala. 555, 18 South. 314; Davis v. Vandiver, 160 Ala. 454, 49 South. 318, and numerous other authorities. We are of the opinion, however, that where, as here, one of the nominal appellants was not a party to the judgment, his joinder in the other’s assignments of error should be simply disregarded as redundant and immaterial, and without prejudice to the consideration of the assignments on their merits. The land in suit was the homestead of plaintiff, and defendant’s claim is founded upon a deed executed by plaintiff and his wife to W. L. Gilley, who in turn executed a deed to defendant. There is no defect in the form of the deed or its certificate of acknowledgment, but its validity is impeached by plaintiff on the ground of fraud or duress in the procurement of the wife’s signature and acknowledgment, participated in by both himself and the grantee. This was the primary issue in the case, and if plaintiff affirmatively established this contention, he was entitled to a verdict, unless defendant showed that he was a purchaser for value from Gilley. In that event plaintiff could have recovered only upon his showing that defendant purchased with knowledge or notice of the infirmity of Gilley’s deed. — Ely v. Pace, 139 Ala. 293, 35 South. 877; Moog v. Strang, 69 Ala. 98. — 567 — The first 13 assignments of error are based on tbe admission of testimony against defendant’s objection. Tbe issnes involved a consideration of tbe circumstances accompanying and leading up to tbe execution of tbe deed by Mrs. Denman, and of acts of coercion on tbe' part of ber husband and of Gilley, tbe grantee. As there was ample evidence for a finding by tbe jury that there was a confederated scheme on their part to coerce Mrs. Denman to that end .by fear, force, or fraud, tbe acts of tbe husband in that behalf were admissible against Gilley or bis privies, whether be was present or not. Tbe first six assignments are without merit, since tbe testimony admitted was relevant to tbe issnes. It was proper for plaintiff to show that Gilley paid nothing for tbe homestead deeded to him, as affecting bis own right to protection as a purchaser, for value, and contingently that of Brown also. Mrs. Denman’s statement that they never received a penny for tbe land was relevant, and there was no other specification of objections to its admissibility. Tbe witness’ competency was not challenged then, and tbe question cannot be raised here. Gilley’s deed to defendant Brown was executed in August, 1910. That Gilley was not in possession of tbe land in March, 1911, was wholly immaterial, but- tbe admission of plaintiff’s evidence to that effect could not have affected tbe case in any way, and was not reversible error. It was not competent for Mrs. Denman to testify that she “did not want to sign tbe deed,” but tbe court was not in error in overruling a general objection to it, or tbe objection that it was irrelevant. Tbe fact was relevant, even though tbe mode of proof was bad. Tbe thirteenth assignment does not exhibit a reversible error, but in any case it is waived by appellant’s failure to argue it. — 568 — In the oral charge to the jury the court stated that the deed executed by the woman under the circumstances narrated by her would be invalid, and would be set aside. As applied to Mrs. Denman’s testimony, the charge was clearly proper; the credibility of her statements being submitted to the jury. The jury could not have been misled, as supposed by appellant. The court did not undertake to state the burden or measure of proof in that part of its charge. Appellant’s exception to another part of the oral charge, which included, among other things, the statement that the burden was on defendant, if plaintiff proved the alleged duress, to show that he was an innocent purchaser, should have been confined to this particular proposition. The other statements included in the exception were, on the evidence before the court, very plainly correct, and hence the exception was properly overruled. The special charges given at the request of plaintiff are correct statements of the law. It is not essential to the impeachment of a certified acknowledgment that the certifying officer should participate in the fraud or duress practiced upon the grantor, and none of our decisions have so held. See Orendorff v. Suit, 167 Ala. 564, 52 South. 744, and cases cited. There is a manifest distinction in fact between the impeachment of the certificate of acknowledgment, and the impeachment of the acknowledgment merely. If the grantor comes before the officer, and in any way acknowledges his execution of the deed, jurisdiction is acquired, and the certificate has the force and effect of a judgment which cannot be impeached at all as against a bona fide purchaser for value. — Grider v. A. F. L. M. Co., 99 Ala. 281, 12 South. 775, 42 Am. St. Rep. 58. — 569 — The officer does not certify that the grantor executed the instrument voluntarily, but only that he acknowledged that he had done so. The fact and circumstances of the acknowledgment are conclusively shown by the certificate in the case above stated, but the voluntariness of the execution is another question. The grantor’s acknowledgment, however, whether voluntary in fact or not, estops him from self-contradiction in that regard as against any purchaser, immediate or remote, who pays value for the property without knowledge or notice of its falsity. The impeachment of the certificate is in effect the impeachment of a quasi judgment. The impeachment of the acknowledgment, as to voluntariness, presents an ordinary issue of fact resting in parol. - Cognizance of this distinction will perhaps serve to explain and harmonize the numerous statements to be found in the long line of our cases dealing with the several aspects of this question. See Barnett v. Proskauer, 62 Ala. 486; Miller v. Marx, 55 Ala. 322; Smith v. McGuire, 67 Ala. 34; Moog v. Strang, 69 Ala. 98; Grider v. A. F. L. M. Co., 99 Ala. 281, 12 South. 775, 42 Am. St. Rep. 58; Sellers v. Grace, 150 Ala. 181, 43 South. 716; Russell v. Holman, 156 Ala. 432, 47 South. 205. The special charges referred to do not include any instruction to the jury as to the measure of proof required for the impeachment of the acknowledgment for fraud or duress on the part of the grantee, and we need not therefore notice appellants’ criticisms of them in that regard. If they were 'misleading in not specifying that Brown’s knowledge of the fraud or duress practiced on Mrs. Denman must, to be effective, have preceded his payment of a valuable consideration for the deed he received from Gilley, the proper remedy was an explanatory charge. — 570 — We find no prejudicial error in the record, and the judgment will be affirmed. Affirmed. McClellan, Mayfield, and Sayre, JJ., concur.