Mallory v. Walton

Smith, C. J., delivered the opinion of the court. This is a suit for partition instituted in the court below by the appellees, who are the widow and children of T. P. Walton, who died in December, 1905. The bill alleged that on the 15th day of March, 1887, Walton was the owner of the land here sought to be partitioned; which was then his homestead, and that on that day he, together with his wife, executed and delivered to G-. W. Naron, T. T. Mancil, and J. R. Naron a deed — 401 — to a one-half interest therein; that on the 4th day of May, 1,908, the grantees in this deed conveyed their interest in the land to1 C. W. Latham, through whom the appellants claim mesne conveyances; that the appellants were the owners of the other one-half interest in the land by inheritance from Walton; and prayed not only for the partition of the land, but for an accounting for rents and profits. The answer of the appellants admitted all the allegations of the bill, but denied that the appellees owned any interest in the land, and in support thereof set forth that in March, 1887, one Daniel McCarthy conceived the idea that there was a vein of coal under the land, and induced Gr. W. Naron to purchase the same, with the view to its being mined by them and the profits divided between them; that Naron paid Walton therefor one thousand, two hundred dollars, and had him to execute two deeds thereto, the one set forth in the appellee’s bill of complaint, and another to a one-half interest therein to McCarthy, the consideration in each being six hundred dollars both of which deeds were signed and delivered by Walton and his wife; that McCarthy was mistaken in thinking that there was a vein of coal under the land, left the country soon after the execution of the deeds, and has not since been heard of; that at the time the land was purchased by Naron he agreed verbally with Walton that he (Walton) might remain on the land until his death, which Walton did. The answer further set forth that, because of the payment by Walton for the one-half interest in the land deeded to McCarthy, a trust therein resulted for Walton’s benefit, and that the deed executed by the Narons and Mancil to Latham on the 4th day of May, 1908, conveyed the whole interest in the land. After the filing of the appellants’ answer the ap-pellees amended their bill by making McCarthy a party defendant thereto and having publication made for him. — 402 — They also denied, under oath, that Mrs. "Walton signed the deed to McCarthy. When the canse came on to be heard Mrs. Walton ■testified on behalf of the appellees and denied signing the McCarthy deed, her evidence relative thereto being-contained in the following question and answer: “Q. Did yon at any time between 1882 and the time of yonr husband’s death — I direct your attention more particularly to the 15th day of March,- 1887 — did you sign with your husband, T. P. Walton, a deed conveying any interest in this land in question to. the complainant Daniel McCarthy? A. No, sir.” The appellees then rested their case, and the appellants introduced in evidence the deed book in the office of the chancery clerk containing the record of the two deeds, from which it appeared that both of the deeds were executed on the 15th day of March, 1887, were signed by T. P. Walton in his own proper handwriting, by Mrs. Walton by her mark as follows, “L. J. Walton X her Mark,” and were acknowledged by both of the grantors on the day of their date, before E. Prank, mayor of the town of Slate Springs. The deed to the Narons and Mancil ;was witnessed by William Doolitttle, but the one to McCarthy was without an attesting witness. De Lashmet, a business associate of Prank in 1887, was then introduced, and testified that Prank died about fifteen years before the day on which the witness testified, and was a gentleman of uninlpeachable honesty and integrity; that the deeds here in question were delivered by T. P. Walton to Naron and McCarthy in his (the witness’) place of business; that at Gr. W. Naron’s request the money paid Walton for the land was counted by the witness, and ascertained to be one thousand, two hundred dollars; and that Naron verbally greed that Walton might remain on the land until his death. This witness also testified that the land was not at that time worth over three hundred dollars. It further appeared from the — 403 — appellant’s evidence- that after the death of Walton, which occurred in December, 1905, his widow remained on the land two years, paying to the present claimants rent therefor for the second year, at the expiration of which time she • removed from the land, and neither she nor the other appelleees herein claimed any interest therein until the filing of their hill of complaint in the court below on December 16, 1915. At the close of the appellant’s evidence Mrs. Walton was again introduced by the appellees, and stated that she signed the deed executed by her husband to the Narons- and Mancil, but on being asked, “Do you remember whether they came back and asked you to sign another deed?” she replied, “Yeé; my husband and Mr. Frank came back and asked me to sign a deed to Mr. McCarthy, and I would not do it.” She admitted paying rent for the land for the second year after her husband’s death, and on being asked, “Why did you move off the land?” replied that, “My children left me and I had no one to stay with.” The first question necessary to 'be determined on this record is whether or not the appellees have an interest in the land. If they have not, their bill should have been dismissed without reference to what interest the appellants may have therein. The claim of the appellees is that the land was Walton’s homestead, that the deed executed by him to McCarthy was not signed by his wife, and was therefore void, and that consequently when Walton died he owned the half interest in the land claimed by the appellants to have been conveyed to McCarthy by this deed, which interest was inherited by the appellees on Walton’s death. Section 2159, Code of 1906 (section 1834, Hemingway’s Code), provides that: “A conveyance, mortgage, deed of trust, or„ other incumbrance upon the homestead exempted from execution, shall not be valid or binding unless signed by the wife of the owner, if he be married and living with his wife.” — 404 — And section 1601, Code of 1906 (section 1368, Hemingway’s Code), provides that: “The term ‘written,’ when nsed in any statute, may include printing, engraving, and lithographing; except that in all cases where the signature of any person is required by law, it shall always be the proper handwriting of such person, or, in case he be unable to write, his proper mark.” The signature here in question does not purport to be in Mrs. Walton’s proper handwriting, but to have been made by her mark, and what we will have to say must be limited to, a signature of such character. The reason for this caution being that while a mark made by another may be adopted as a signature, there may be a difference under the last statute hereinbefore set forth between the power of a person to adopt a signature made for him by another and which purports to be in his own proper handwriting, and his power to adopt such a signature made by a mark, as to which an opinion is not now necessary. Ferguson v. Monroe County, 71 Miss. 524, 14 So. 81; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L. R. A. 102. While Mrs. Walton denied signing the deed in controversy, she did not deny that the facts stated in the certificate of acknowledgment are true; that is, that she personally appeared beford R. Frank, mayor of the town of Slate Springs and ex-officio justice of the peace, and acknowledged that she “signed and delivered” the deed. So that if her testimony be construed most strongly against her, as it should be, we must hold that the recital in the certificate is true, and, if true, then by acknowledging and delivering the deed she adopted as her signature the mark appended as such thereto, though it may have been made by another. 1 Devlin on Deeds (3 Ed.), section 237; 1 Am. Ruling Cases, 147. But if we assume that by denying that she signed the deed Mrs.Walton intended also to deny that she acknowl — 405 — edged and delivered it, the result must he the same, for the presumption is that a certificate of acknowledgment states the truth, which presumption can be overthrown “only by evidence, so clear, strong, and convincing as to exclude all reasonable controversy as to the falsity of the certificate” (1 C. J. 896; 1 Devlin on Deeds [8 Ed.], section 531); of which high degree of proof the evidence here in impeachment of the certificate falls far short, being only the uncorroborated testimony of the grantor whose signature is in question, which evidence is generally held to be insufficient (1 C. J. 899); while, on the other hand, the certificate of acknowledgment is corroborated by the after-conduct of all of the parties in interest, including that of Mrs. Walton herself. It follows from the foregoing views that the decree of the court below must be reversed for the reason that the appellees have no interest in the land here in question, because of which, as hereinbefore stated, their bill should have been dismissed without reference to the extent of the appellants’ interest therein. The only other question necessary here to be determined is whether the case should be remanded to the court below for a new trial, or a final decree entered here under the provisions of section 4919, Code of 1906 (section 3195, Hemingway’s Code). The testimony of the witnesses was delivered orally before the chancellor, and when the record of the deed to McCarthy was offered in evidence the appellees objected thereto, for the reason that the execution of the deed by Mrs. Walton had been denied under oath. This objection was predicated upon section 1956, Code of 1906 (section 1616, Hemingway’s Code). If this objection should have been sustained, and the record copy of the deed excluded from the evidence, no final decree should be rendered here, for the reason that the evidence objected to must be taken into consideration in order so to do. — 406 — The court reserved its ruling on this objection; and not only was no ruling thereon thereafter made, but the court was not requested so to do. The appellees were entitled to a ruling on the objection before the close of the evidence had they so requested, but by their failure so to do the objection was waived. In the absence of a ruling excluding the evidence the appellants were entitled to have it considered by the court, and, in event such a ruling had been made, they could have either introduced the original deed, or accounted for its absence, and thereby' made the record copy thereof competent. The decree of the court below will be reversed and the bill dismissed. Reversed and dismissed.