
    (109 So. 756)
    GRIFFIN v. GRIFFIN.
    (2 Div. 879.)
    (Supreme Court of Alabama.
    Oct. 14, 1926.)
    1. Appeal and error <i&wkey;l009(4) — Decree based on oral evidence will not be disturbed, unless plainly contrary to great weight of evidence.
    In bill to remove cloud upon title to certain laud, where parties and witnesses were examined orally in presence of court, findings of court will not be disturbed, unless plainly contrary to great weight of evidence.
    2. Logs and logging <&wkey;2 — Deed executed by husband conveying certain land to his wife held to include timber growing thereon.
    Where husband conveyed certain land to his wife, and thereafter they executed timber deed contract, it was error to decree that money paid for extension privileges under this contract belonged to husband, since conveyance to wife included timber which was growing thereon.
    Appeal from Circuit Court, Perry County; S. F. Hobbs, Judge.
    Bill in equity by Waverly G. Griffin against Bobbie M. Griffin. From the decree, complainant appeals.
    Affirmed in part, and reversed and remanded, with directions.
    Thos. E. Knight, of Greensboro, and Stokely, Serivner, Dominick & Smith, of Birmingham, for appellant.
    Counsel discuss the questions raised, but without citing' authorities.
    Chauncey Sparks, of Eufaula, and Clifton C. Johnston, of Marion, for appellee.
    Where the evidence was ore tenus before the trial judge, his judgment thereon will not be disturbed, unless plainly erroneous. Birmingham Nevts Co. v. Barron G. Collier, Inc., 212 Ala. 655,' 103 So. 839; Odom v. County 'Coal Co. of Alabama, 212 Ala. 374, 103 So. 42.
   MILLER, J.

This is a bill in equity by Waverly G. Griffin against his wife, Bobbie M. Griffin, to cancel a deed on record as a cloud upon his title to certain land therein described. The complainant and respondent were living together as husband and wife when the alleged deed purports to have been signed, attested, acknowledged, and delivered by him to her. It was filed for record by her prior to the institution of this suit by him. They are now separated, and have been living apart for about two years.

The position and contention of complainant as presented by the bill and his evidence are that the deed is a forgery; and the respondent by her answer and evidence contends the deed was actually executed and delivered to her by him, and is a valid instrument as between him and her.

The court rendered a decree on proof denying- complainant relief, and dismissed the bill. This decree is assigned as error by complainant, and the only question presented thereby is one of fact whether this deed was forged or not.

This instrument bears date of July 25,1916, was filed for record August 6, 1924, and appears on its face to have been signed by the complainant, attested by J. S. Green, acknowledged before T. F. Aultman, a justice of the peace, and this justice of peace certifies thereon that J. S. Green probated the conveyance before him. The respondent is named as grantee therein, and the consideration is $5 cash and love and affection.

The complainant, J. S. Green, and T. F. Aultman were each examined orally in the presence of the court. Each testified that his name appearing on the deed looked like, but was not, his signature. They testified about the date of the deed, that the instrument signed was not a deed, and not this deed, but was a mortgage by complainant and his wife on this land to L. M. Mattox, father of the defendant, to secure $2,000. Complainant testified it was “a bogus mortgage,” made for the purpose of preventing the collection of cost in a suit pending, in which he was a party, and the mortgage was never delivered to Mattox, but was afterwards destroyed by him. ,

Five witnesses were examined orally before the court who knew the signatures of the grantor, subscribing witness, and justice of the peace, or one or more of them, and each examined the signatures on the deed, and testified that the signature known by him was genuine.

The testimony of respondent and her father appears in form of depositions. She testifies this deed was signed by her husband at the home of the justice of the peace in her presence, attested there by J. S. Green, and the certificates on it were made by the justice of the peace, and the deed was then delivered to her. by her husband. She testified that no mortgage was made on this land to her father, but at the time “a bogus mortgage on personal property” of complainant was made by him to her father. The complainant, defendant, the subscribing witness, and the justice of the peace all agree that about the time of the alleged execution of this deed they were all at the home of the justice of the peace. She testifies this deed was then signed, attested, acknowledged, and delivered. The other witnesses deny this, and state no deed was 'signed, but a mortgage on tbe land was signed to Mattox by complainant, wbicb was also signed by tbe defendant, and it was attested by Green, and acknowledged before Aultman.

Tbe original deed is before us. It is a partly printed warranty deed. Tbe blank places in its body appear in tbe bandwriting of tbe defendant, except tbe date “25tb” day of “July.” It is evident from tbe evidence that the “25th” and “July” were written by T. E. Aultman, the justice of tbe peace, in tbe body of tbe instrument. There are certain physical facts which point almost certainly to tbe conclusion that this justice of tbe peace wrote tbe name “Waverly G. Griffin” in tbe body of tbe certificate of probate appearing on tbe deed.

Whether this deed was forged or not, the testimony is in direct conflict by positive proof, and there are strong circumstances, as well as tbe testimony of five witnesses who testify to tbe genuineness of tbe signatures of all or some of tbe names appearing on it.

When the decree of tbe court is based on evidence ore tenus,. or partly so, as in this cause, tbe conclusion reached will not be disturbed by us, unless plainly contrary to tbe great weight of tbe evidence. Tbe testimony by its weight is not contrary to, but clearly supports, the conclusion reached by tbe trial court, and its decree denying complainant relief and dismissing bis bill will be, and is, affirmed. Bell v. Blackshear, 206 Ala. 673, 91 So. 576; Birmingham News Co. v. Barron G. Collier, 212 Ala. 655, 103 So. 839; Odom v. County Coal Co., 212 Ala. 374, 103 So. 42.

A. J. Hook files an interpleader, in wbicb he sets up that complainant and defendant, on tbe 3d day of January, 1920, after tbe execution, and before tbe recordation of this deed, sold and conveyed to him certain timber, therein named, on this land, for tbe consideration of $4,500, with right to remove it for a period of five years from its date, and tbe conveyance contained this provision:

“Provided that all the rights herein granted may be extended for an additional period of ten years from year to year by paying on or before the beginning of each year an amount equal to 8 per cent, on the purchase price of said timber as herein set forth, and provided further that the said Waverly G. Griffin shall have the personal right to use such small timber as may be needed for fire wood, but this right shall not be transferable, and shall not pass to the purchaser of said land. All the rights herein granted shall be exercised so as not to interfere more than is necessary with the tillable land or with the tenants or other occupants of said premises. And the said Waverly G. Griffin covenants with the party of the second part that he is seized of an indefeasible estate in fee simple to said property and has good right to convey the same, that it is free from all in-cumbrances, and that he will warrant and defend the title to the same against the lawful claims of all persons whomsoever.”

This petitioner filed this interpleader in this cause on tbe 1st day of January, 1925, accompanied with tbe sum of $360, in cash, to be paid to either tbe complainant or defendant, as tbe court might determine, and this was done in order to have extended bis rights to cut and remove tbe timber from this land under tbe contract.

Tbe court by decree declared that this $360 belonged to complainant, and directed that out of it tbe cost of this cause be paid and tbe balance delivered by tbe register to tbe complainant. This part of tbe decree is assigned as error by tbe appellee, tbe respondent, as is permitted under section 6091 of Code 1923.

This deed executed by complainant to thb defendant conveying this land to her did not except, but included therein, this timber which was growing thereon. He conveyed tbe timber to her. They sold it to A. J. Hook, and we find no evidence showing she recon-veyed her rights to it to tbe complainant.

As between complainant and tbe defendant: This $360, paid into court under tbe timber deed contract, belonged to tbe appel-lee, Bobbie M. Griffin. Tbe court should have directed tbe register to pay it to her, and the court cost of tbe cause should have been taxed against tbe complainant.

This cause will be reversed and remanded for tbe court to decree that this $360 belongs to the defendant, to direct tbe register to pay it to her, and to tax tbe complainant with tbe cost of tbe court.

It results that tbe decree is affirmed in part, and reversed and remanded in part, with directions.

Affirmed in part, and reversed and remanded, with directions.

ANDERSON, C. J., and SAYRE and GARDNER, J.I., concur. 
      
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