
    Jones v. Hagler.
    
      Statutory Action in nature of Ejectment.
    
    1. Secondary evidence of recorded deed. — When a party claims 'remotely under a deed oí which he is not the legal custodian, and which has never been in his possession or custody, he is excused from
    -producing it on notice, and may adduce secondary evidence of its contents; and this may be done by producing either the original record book in which it was recorded, or a certified copy of the record.
    2. Defective acknowledgment, of deed as attestation. — A defective certificate of acknowledgment, ap ended to a deed, may operate as the attestation of a witness; the officer who made it may testify to his own signature, and to the fact that the deed was executed in his presence; and the deed is admissible as evidence on that proof.
    3. Dower of sale in deed of trust; request of beneficiaries, or either of them. — When a deed of trust is executed for the protection and indemnity of two sureties, and authorizes the trustee to sell and “pay whatever may be necessary to indemnify them or either of them,” he may sell at the request of one, who alone has been damnified.
    4. Possession of trustee making sale under power. — When a deed of trust authorizes the trustee to take possession and sell on default, but does not require that he shall enter before making a sale, he may sell without taking possession, and it is not necessary that his deed to the purchaser shall show that he was in possession.
    5. Recitals of deed as to date of sale. — It is not necessary that the trustee’s deed to the purchaser at his sale should specify the day on which it was made, but it may state that the sale was made “on or about” a named day.
    6. Description or identification of trustee as grantor in deed. — It is not necessary that the name of the trustee shall be stated in the deed as the grantor, when its recitals and his signature to it clearly identify him as the grantor.
    7. Sitie under power for cash, or on credit. — When the deed authorizes the trustee to sell for cash, and he sells on time, with the acquiescence of the beneficiary, who receives the benefit of the bid, a third person can not assail the purchaser’s title because the sale was not made for cash.
    8. Delay in execution of deed to purchaser. — When the purchaser- sues to recover the possession of the land, and the trustee’s deed to him shows that it was executed twelve years after the sale, it is not'incumbent on him to explain the delay in its execution, as against the defendant who was not a party to the sale, and who does not show any right to impeach it for fraud.
    9. Conveyance to third person as purchaser, at instance of bidder at sale. — A stranger to the sale can not assail its validity because the. trustee executed a deed, not to the nominal bidder and purchaser, but to a third person at his instance.
    10. Judgment and execution as evidence. — Where the plaintiff claims as purchaser at a sale made by a trustee under a power conferred by deed of trust for the indemnity of sureties on specified debts, the record of a judgment recovered on one of these debts, and executions thereon showing its payment by one of the sureties, are admissible evidence as tending to show the authority of the trustee to make the sale.
    11. Issue on immaterial or defective plea. — When issue is joined, without objection, on an immaterial or defective plea, the defendant is entitled to adduce evidence in support of it, and is entitled to verdict and judgment if the evidence sustains it, the plaintiff's remedy being to ask for a repleader.
    12. Plea of statute of frauds ; burden of proof. — When issue is joined on a plea of the statute of frauds, in an action on a contract within its terms (Code, § 1732), the plaintiff assumes the onus of proving a compliance with its terms, or that the contract was taken out of the statute by part performance.
    Appeal from tbe Circuit Court of Tusbaloosa.
    Tried before tbe Hon. Sam:. H. Sprott.
    Tbis action was brought by Edward J. Hagler against John W. Jones, to recoverthe possession of a tract of land particularly described in tbe complaint, and was commenced on tbe 20th July, 1888. Tbe plaintiff claimed tbe land as purchaser at a sale made by Moses McGfuire, as trustee in a deed of trust executed to him by David G. Jones, who was tbe father of tbe defendant. Tbis deed was dated August 2d, 1858, and was given to secure John W. Pruitt and John H. Spain against liability as sureties for tbe grantor on' certain debts particularly described; and it authorized tbe trustee, on default of the grantor in tbe matter of tbe secured debts, “to take possession of said land and slaves, or so much of them as may be necessary for tbe purpose, and sell them at public auction, for cash, at tbe door of tbe court-house of tbe county, on giving ten days notice, and pay off any of tbe bills indorsed by them, and pay all and whatever may be necessary to indemnify said John W. and John H., or either of them, and save them harmless in tbe premises.” Tbe defendant pleaded, 1st, tbe statute of limitations of ten years; 2d, “payment of the secured debt, or performance of tbe condition of tbe deed of trust3d and 4th, that said Moses McGuire was non compos mentis at tbe time be executed tbe deed to plaintiff; 5th, not guilty; 6th, that tbe deed or contract of McGuire was void under tbe statute of frauds (Code, § 1732), because no note or memorandum thereof, expressing the consideration, was made at the time of the sale, and subscribed by the party to be charged; and, 7th, that the contract was void under said statute, because no part of the purchase-money was paid at the time, and the purchaser was not placed in possession. Issue was joined on all of these pleas without objection.
    On the trial, as the bill of exceptions shows, the plaintiff offered the deed of trust in evidence, and the court admitted it against the objection and exception of the defendant, on grounds specified in«the opinion. The plaintiff offered in evidence, also, the deed executed to him by said' McGuire as trustee, and the court admitted it against the ■ numerous objections of the defendant. This deed was dated March 2d, 1878, and signed by Moses McGuire as trustee ; and it contained these recitals : “ Whereas, on the 2d August, 1858, David G. Jones executed to me as trustee, for the benefit of Jolm’W. Pruitt et al., a deed of trust to the following lands,” describing them; “and whereas, at the request of said John W. Pruitt, the undersigned did, after giving the notice required by said deed, on or about the 1st December, 1866, expose to sale to the highest bidder for cash, at the court-house in said county, the land above mentioned; and whereas, at said sale, Edward J. Hagler became the purchaser at the price of $600; and whereas, said Hagler arranged the payment of the sum bid with said John W. Pruitt, the beneficiary in said deed: Now, therefore,” <fec. in the usual form of a deed for land. There was no subscribing witness to this deed, nor any certificate of acknowledgment, but appended to it was a certificate by a justice of the peace, in these words: “I, J. W. Bagnall, acting justice of the peace in and for said county, hereby certify that the above named person signed this conveyance; same bears date this 2d March, 1878.” In connection with the deed, the plaintiff introduced said Bagnall as a witness, who thus testified : “Moses McGuire signed said deed in my presence, and I thereupon wrote and signed the statement set forth.” The defendant objected to the testimony of said Bagnall, and also to the admission of the deed as evidence, “because it was not acknowledged or attested as ‘ by law provided;” and he excepted to the overruling of' these objections.
    The defendant made the following additional objections to the admission of the deed as evidence : (1.) Because
    John W. Pruitt and John H. Spain “were joint beneficiaries under said deed of trust, while the deed of McGuire to Hagler showed that the sale under it was made at the request of only one of them.” (2.) Because the deed of trust provided that the trustee should take possession of the property before selling, and it was not shown, nor could it be shown, that the trustee was in possession, actual or constructive, at the time the sale was alleged to have been made. (3.) Because the deed states that the sale was made “on or about the 1st December, 1866,” and not on the particular day set for the sale. (4.) Because “the name of the grantor is not mentioned in the body of the deed as conveying in the capacity of trustee or otherwise.” (5.) Because the deed showed that the purchase-money was not paid in cash, as required by the terms of the deed of trust. (6.) Because the delay in the execution of the deed “was such a badge of fraud that it devolved on the plaintiff to explain it before said deed could be introduced.” (7.) Because it was not made to the purchaser at the sale. The court overruled each of these objections as made, and the defendant duly excepted. The plaintiff offered in evidence, also, the record of a judgment recovered against said J. W. Pruitt in September, 1861, on one of the debts secured by the deed of trust, and execution thereon, with indorsements showing its payment by Pruitt. The defendant objected to the admission of this evidence, but specified no particular ground of objection, and he excepted to its admission.
    The assignments of error embrace all the rulings to which exceptions were reserved.
    Wood & Wood, and J. J. Mayfield, for appellant.
    Foster & Oliver, contra.
    
   WALKER, J.

The plaintiff claimed title through a sale and conveyance made by Moses McGuire, as the trustee in a deed of trust in which David G. Jones was the grantor. To prove the deed of trust, the plaintiff offered the original record thereof as contained in one of the record books of deeds kept in the office of the probate judge of Tuskaloosa county. Objection was made to this evidence, on the grounds that the defendant had made demand on the plaintiff to produce the original of said deed of trust, and that a certified copy should have been offered instead of the original record. The plaintiff testified, without contradiction, that the original of the deed of trust had never been in his possession or'custody, or under his control. He was not the legal custodian of the instrument. That being the case, it was not incumbent upon him to produce it, or to account for its absence. Tbe instrument could as well be proved by tbe original record as by a certified copy tberefrom. Stevenson v. Moody, 85 Ala. 33 ; Miller v. Boykin, 70 Ala. 469. Tbe objection to this evidence was properly overruled.

Tbe several grounds of objection to tbe admission in evidence of tbe deed by Mioses McGuire as trustee to tbe plaintiff will be considered in detail.

(1.) Tbe plaintiff did not claim that tbe statement written upon tbe deed and signed by tbe justice of tbe peace was sufficient as a certificate of acknowledgment. It was relied upon as an attestation, and tbe justice of tbe peace was called as a witness to prove tbe deed. Tbe statement certifies “that tbe above named person signed tbis conveyance.” Tbis language fairly imports tbat tbe justice of tbe peace bad knowledge of tbe fact to wbicb be certifies, — tbat be was a witness to tbe signing. Tbe execution of a conveyance for tbe alienation of land, wben made by a person who is able to write, must be acknowledged, or attested by one witness, wbo must write bis name as a witness. — Code of 1886, § 1789. A proper attestation may be made by tbe mere signature of tbe witness. It is sufficient tbat tbe signature appears to be made for tbe purpose of attesting tbe execution of tbe conveyance. It bas been decided tbat a defective acknowledgment may operate as a substitute for tbe attestation of a witness, and in sucb case tbe officer is treated as an attesting witness. — Rogers v. Adams, 56 Ala. 600; Sharpe v. Ormc, 61 Ala. 263; Carlisle v. Carlisle, 78 Ala. 544. Tbe signature of tbe justice of tbe peace to tbe statement above referred to was sufficient as an attestation, and there was no error in overruling tbe objection to tbe introduction of tbe deed on tbe ground tbat it was not properly attested.

(2.) Objection was made to tbe introduction of tbe deed to tbe plaintiff, on tbe ground tbat it was shown and provided by tbe deed of trust tbat John ~W. Pruitt and John H. Spain were joint beneficiaries thereunder, and tbat tbe deed to tbe plaintiff shows tbat tbe sale under tbe deed of trust was made at tbe request of only one of tbe beneficiaries. By tbe power of sale contained in tbe deed of trust tbe trustee is authorized to sell in tbe mode prescribed, and to “pay off any of tbe bills indorsed by them [Pruitt and Spain], and pay all and whatever may be necessary to indemnify said John W. and John H., or either of them, and save them harmless in tbe premises.” Tbis language authorizes tbe execution of tbe power of sale for tbe indemnification of either Pruitt or Spain, for any loss sustained in consequence of any indorsement made in pursuance of tbe provisions of tbe deed of trust. There is no provision that one pr both of tbe beneficiaries shall request the trustee to execute tbe power of sale. If Pruitt alone bad sustained losses in consequence of tbe indorsements mentioned in tbe deed of trust, tbe power of sale could be executed for bis benefit alone. Tbe recitals of tbe deed to tbe plaintiff do. not show a disregard of tbe terms of tbe power in tbe particular specified in tbe objection.

, (3.) Taking possession of tbe land by tbe trustee was not, by the terms of tbe deed of trust, made a condition precedent to tbe exercise of tbe power of sale. Tbe trustee was authorized, but not required, to take possession of tbe land before making a sale thereof. — -2 Jones on Mortgages, § 1782 ; Vaughan v. Powell, 4 So. Rep. 257 ; Riley v. Brewster, 44 Ill. 186. Tbe terms of tbe instrument which was construed in tbe case of Foster v. Boston, 133 Mass. 143, indicated that tbe execution of tbe power in tbe mode provided made it necessary for tbe trustee to acquire possession of the property before making a sale. In such a case, possession by tbe trustee is properly regarded as a condition precedent. It does not seem that such a condition could be satisfied by a mere demand for possession, as was intimated in tbe case of Roarty v. Mitchell, 7 Gray, 243.

(4.). Tbe deed to tbe plaintiff recites that the grantor therein, “after giving tbe notice required by said deed of trust, did, on or about tbe first day of December, 1866, at the court-house in said county, expose to sale,” &c. If a sale bad been made pursuant to tbe terms of tbe power, it was not material for tbe trustee to recite in bis deed the exact date of such sale. After tbe sale was duly made be could with propriety execute a deed to tbe purchaser, though be was unable to state therein tbe exact date of tbe sale. If tbe defendant was entitled to require tbe plaintiff to prove- a compliance with tbe provisions of tbe power, as to the notice of tbe time and place of sale, on tbe ground that the recitals in that- regard of tbe deed made by tbe trustee were not binding on a stranger (Wood v. Lake, 62 Ala. 489; 1 Devlin on Deeds, § 425; 2 Jones on Mortgages, §§ 1830 and 1896).; the consideration that tbe burden was on tbe plaintiff to make such additional proof would not justify the rejection of bis deed as a link in bis chain of proof.

(5.) Tbe name of tbe trustee is not mentioned in tbe body of bis deed; but tbe recitals thereof furnish tbe means of clearly identifying Moses McGuire as tbe grantor. Tbe deed recites: “Whereas, on tbe second day of August, 1858, David G. Jones executed to me as trustee, for tbe benefit of John W. Pruitt et al., a deed of trust to tbe following described lands, to wit[here follows a description of tbe land], “wbicb deed is recorded in Book 5, page 138, of tbe records of deeds in tbe office of tbe judge of probate of Tuskaloosa county, Alabama.” An inspection of tbe deed of trust, wbicb is tbus fully described, discloses tbat Moses McGuire is tbe trustee therein, and makes it manifest tbat be is tbe grantor in tbe deed to tbe plaintiff. Tbis is a sufficient description and identification of tbe grantor. Madden v. Floyd, 69 Ala. 221.

(6.) Tbe power in tbe deed of trust authorized tbe trustee to sell for cash. The payment of tbe plaintiff’s bid was a matter between him and tbe beneficiary of tbe sale, and with wbicb tbe defendant in tbis case bad no concern. By tbe arrangement recited in tbe deed to plaintiff, tbe grantor in tbe deed of trust obtained tbe credit and benefit of tbe amount bid. When tbis was done, neither be nor any other person who was not a beneficiary under tbe deed of trust could complain because tbe payment was not made in cash. Mewburn v. Bass, 82 Ala. 622 ; Cooper v. Hornsby, 71 Ala. 62.

(7.) It was not incumbent upon tbe plaintiff, in offering tbe deed to himself, to explain tbe delay in its execution. Tbe execution of the deed by tbe trustee in 1878 shows upon its face bis recognition of tbe sale made by him in 1866, and that tbe purchaser at tbat sale bad all along been entitled to a conveyance of tbe land sold. Tbe defendant was not a party to tbat sale, and, in making tbe objection tbat tbe delay was a badge of fraud,, be did not suggest any fact to show that be bad any interest in the matter which would entitle him to complain of tbe delay. — Broughton v. Atchison, 52 Ala. 62. None of tbe grounds of objection to tbe introduction of tbe deed to the plaintiff were well taken.

There was evidence tending to show tbat, at tbe sale under tbe power, John "W. Pruitt, one of the beneficiaries under tbe deed of trust, bid off tbe lands, and afterwards directed tbe deed to be made to tbe plaintiff. It often happens tbat one who bids at an auction sale is acting for another person, or transfers bis bid to another. In tbe absence of fraud, there is no objection to such a transaction. If tbe ostensible purchaser directs tbe deed to be made to another, a stranger to tbe sale can not complain tbat tbe real purchaser did not make bis bid in person.' — 2 Jones on Mortgages, § 1896. Tbe motion to exclude tbe deed, because it was not made to tbe purchaser at tbe sale by tbe trustee, was properly overruled.

Tbe record of tbe judgment and executions, with tbe returns therein, in tbe case of R. K. Hargrove, v. John W. Pruitt, was admissible as evidence tending to show a breach of tbe condition of tbe deed of trust, and that Pruitt was entitled to tbe execution of tbe power of sale for bis indemnity, to tbe extent of tbe amount realized in proceedings against him on one of tbe bills of exchange which be indorsed for David G-. Jones, as was recited in tbe deed of trust.

Tbe plaintiff did not demur to any of tbe seven pleas interposed by tbe defendant, but joined issue on all of them. Tbe question of tbe sufficiency of tbe 6th and 7th pleas as answers to tbe complaint was not raised in any manner. By joining issue upon them, tbe plaintiff admitted that each of them stated a defense which, if sustained by tbe evidence, would defeat tbe action. A case must be tried on tbe issues developed by tbe pleadings. If a false issue is made up, in consequence of a neglect to resort to tbe means provided by law for its elimination, tbe question thereby presented is one of fact for tbe determination of tbe jury, and if tbe proof sustains such issue, tbe party setting it up is entitled to a verdict and judgment on it.— Geo. Pac. Railway Co. v. Probst, 90 Ala. 1; Allison v. Little, 93 Ala. 150; Masterson v. Gibson, 56 Ala. 56. Tbe 6th and 7th pleas are pleas of tbe statute of frauds. In joining issue thereon, tbe plaintiff assumed tbe burden of showing facts which would, avoid tbe effect ■ of tbe pleas. He put himself in tbe attitude of affirming that, at tbe time of tbe sale by Moses McGuire to him/a note or memorandum thereof was made, expressing tbe consideration in writing, and subscribed by tbe party to be charged therewith or some person thereto by him lawfully authorized in writing; or that tbe purchase-money or some part thereof was paid, and that tbe purchaser was put in possession of tbe land by tbe seller. — Jonas v. Field, 83 Ala. 445. Tbe provisions of tbe statute of frauds which were referred to in tbe pleas were applicable to tbe sale made by McGuire. Tbe objection that tbe benefit of these provisions was not available to tbe defendant (Lewis v. Wells, 50 Ala. 198; Cooper v. Hornsby, 71 Ala. 62; Mewburn v. Bass, 82 Ala. 622), could have been raised by demurrers or replications to tbe pleas. No such objection having been interposed, and tbe plaintiff having failed to offer any proof that in tbe sale by McGuire there was a compliance with tbe statutory requirements referred to in tbe pleas, be failed to sustain tbe burden assumed by bis joinder of issue thereon; and tbe result was that, on these issues, tbe defendant was entitled to a verdict and judgment. Tbe general charge requested by tbe defendant should have been given. On the remand'ment of the cause, the plaintiff may move in the court below for a repleader, as to pleas presenting false or immaterial issues.— Geo. Pac. Railway co. v. Probst, 90 Ala. 1; Mudge v. Treat, 57 Ala. 1.

In the foregoing opinion we have considered such questions presented by the rulings of the Circuit Court on tbe admission and rejection of evidence as are likely to arise on another trial.

Beversed and remanded.  