
    Harper et al. v. Reaves.
    
      Statutory Action of Ejectment.
    
    [Decided June 28, 1902.]
    1. Conveyance of land; when instrument a deed and not a will. Where an instrument conveying land is in form a deed, is witnessed and probated as such, and there is no power of revocation reserved expressly or by implication, and the only word in it to indicate that the party making it intended it to operate as a will is the word “bequeath” in connection with the word “convey,” stating that the grantor “bequeathes and conveys the lands,” describing them by land office numbers, suqh an instrument will be construed to be a deed and not a will.
    Appeal from the Circuit Court of ’Randolph.
    Tried before the Hon. ’A. H. Alston.
    This was a statutory action in the nature of ejectment, brought by the appellee, 0. 1). Reaves, against .the appellants, to recover certain lands specifically described in the complaint. The facts of the case axe sufficiently stated in the opinion.
    Upon tiu; introduction of all the evidence* the court at the request of the plaintiff, gave to the jury the general affirmative charge: in his behalf, to the giving of which charge the defendants duly excepted .
    There were verdict and judgment for the plaintiff, and the defendants appeal; and assign as error the several rulings of the trial court ü> which exceptions were reserved.
    B. B. & W. H. Bridges and Henderson & Rowland, for appellant,
    cited k'harp v. Orine, 61 Ala. 263; Webb n. Mullins, 78 Ala. Ill; Ward v. Oheney, 117 Ala. 238; Wisdom v. Reeves, 110 Ala. 418; B. & L. Asso. v. Agrí-cola, 124 Ala. 474; Bullvoom v. McLaughlin, 99 Ala. 60; Devlin on'Deeds, § 840.
    E. M. Oliver, contra,
    
    cited Webb v. Mullins, 78 Ala. 111.
   HARALSON, J.

— Both parties claim title from the same source, — from Hyrildia Edge. She executed the instrument under which the plaintiff claims title, on the 3rd of January, 1874, in the presence of two witnesses. It vais probated before a justice; of the peace, by one of the subscribing witnesses, on the 27th of Nov-i inlier, 1874, and was recorded on the 26th October, 1898. The introduction of this instrument, as a muniment of plaintiff’s title to the land sued for, was objected to by the defendants, on the ground that it. was m.'t self-proving; that the probate of the witness was not sufficient to admit the instrument- to record; that said instrument was not a deed but a will, and that it was not executed as wills are required by law to be exe cuted. There was no evidence that it was ever attempted to-'be probated as a will. The court overruled tlíese objections and admitted the paper' in evidence. This ruling is not assigned or insisted on in argument as error, and is waived.

The defendants defended, on the ground, that Syril-dia Edge, on the 3rd day of June, 1893, executed to their grantor, G. A. Folsom, a. deed to the same lands as are contained in the paper under which plaintiff claims. This paper purporting to convey to said Folsom these lands, was not attested by a subscribing witness, but it does purport to' have been acknowledged by the grantor before A. B. Brookshier „a justice of the peace, on the same day it waá executed. This acknowledgment, however, was insufficient as. such, but it will operate as an attestation by a single witness. — 3 Brick Dig. 298, § 19. It ivas not recorded until the 20th of February, 1897. The defendants proved by the said justice, that, lie saw the grantor sign the instrument. The point is made, that the. ivitness having been examined on interrogatories, did not have the instrument before him when he deposed. He Aras asked to- examine the deed attached to the interrogatories, and to state Avhether or not he was present Avhen the same Avas executed; if he saw the grantor sign it, and if it Avas his certificate attached to the same. He answered affirmatively, and it is stated in the hill of exceptions, that the deed attached to the interrogatories to the'witness was the original deed of the grantor, Syrildia Edge, to G. A. Folsom, herein above (in the bill of exceptions) set out. This Avas quite sufficient to show that the original was before the witness Avhen he aauis examined.

Aside from the execution of the deed, the plaintiff objected to the. introduction of this paper on the ground that it was executed after the deed offered in evidence by plaintiff Avas executed; because it does not convey any hind, but only conveys a certificate of entry or land patent; because it contains an interlineation, — the Avord, east, being interlined after the word south, and before the Avord quarter, in the description of the land contained therein, and because the same is mutilated. The original is before us, having been certified to this court by order of the circuit court. On an inspection of the original, we discover no interlineation in the deed such as is set out in the. objection. The word, east, is plainly written between the words, south and quarter, and does not bear any suspicious appearances of being an alteration, though, as stated, the objection is not to a material alteration, but to an interlineation which does not appear. But the mere fact that alterations, or erasures, or interlineations are apparent on the face of the deed,—if either were there in this case, — does not destroy its validity. The effect of them, ordinarily, as held, depends on extrinsic evidence, and is incapable of determination upon a motion to exclude the deed as an instrument of evidence,—Ward v. Cheney, 117 Ala. 241. The alleged mutilations in the instrument are not sufficient to destroy its validity as a deed. It is full and sufficient to convey the land described, notwithstanding the omission, here and there, of certain words, occasioned by the age,- the wear and improper care of the deed.

The objections to the introduction of the deed, such as we have considered, appear, therefore, to have been without foundation. The other objection, that the deed was executed to defendants’ grantor, after the one to the plaintiff was executed, was well taken, however, if the paper under which plaintiff claims is in law a deed and not a will. If a deed, the title passed thereby out of the grantor into' the plaintiff, and there remained no right or title to the land which could be conveyed by said grantor by said subsequent deed to defendants’ grantor, G. A. Folsom. We have examined plaintiff’s said muniment of title. It is in form a deed, witnessed and probated as such, and employs the language and terms of a convey anca There is no power of revocation reserved expressly or by implication, and the title does not appear to be postponed until after the death of the grantor. The only word in it to1 indicate that the party making it intended it to be a will is, that she used the Avord “bequeath” in connection with the Avord “convey,” stating, “I bequeath and convey” to my son (the plaintiff), the lands she possessed, describing them by land office numbers, — the description itself being an indication, tlicugb not controlling, that she intended to make a deed. The words used in connection with the personal property described, — “that I now possess or may came into the possession of during my natural life” while appropriate to- a will, are not inconsistent with tlie paper being a deed. If the paper on its face were equivocal, the presumption would be against its operating as testamentary, unless it were made clearly to appear that it was executed animo testancli, to operate as a posthumous disposition of her property.—Abney v. Moore, 106 Ala. 134; Whitten v. McFall, 122 Ala. 619; Gomez v. Higgins, 130 Ala. 493. When properly construed, the plaintiffs muniment of title must he construed to be a deed which passed idle title, certainly, of the land therein described to him, leaving no title thereto, to be conveyed afterwards to' defendants’ grantor, G. A. Folsom, and there was no error in overruling defendants’ objection to its introduction in evidence.

For the same reason, there was no error in sustaining the objection of the plaintiff to the introduction of the defendants’ deed from said G. A. Folsom and wife to them. They had, as stated, no title to convey to defendants.

Affirmed  