
    Stewart v. Fowler.
    1. When the acknowledgment of a deed of trust, conveying personal property to a trustee, for the benefit of certain creditors, is made by the grantor, and the delivery is said to be acknowledged to the cestui que trust, instead of the trustee, it is a substantial compliance with the statute, and the deed is properly admitted to record on such an acknowledgment.
    2. A grantor who has a resulting trust in the property conveyed, is not a competent witness for his grantee, in an action of trespass, although he is introduced only to prove the consideration of the deed.
    Writ of error to the County Court of Morgan.
    TRESPASS for taking and carrying away a slave. The defendant pleads not guilty, and justification.
    The plaintiff introduced a deed of trust in evidence, by which jt appeared that Aai’on Perry had' conveyed the slave in controversy, to. Malcajah' D. Fowler, in trust to sell; for the, purpose of paying- certain liabilities of Perry,to John Fowler, jfcmes Teague and Francis!M<.,Roby. ' No specific resulting, trust'i¡3 reserved to Perry by the deed. .
    . The deed was'admitted' tb record on this certificate: , ..,] “Personally'appeared before me, Thomas Price, clerk of tile County, Court of. Morgan county, Alabama, the ,above named Aaron Perry,-who acknowledged tjuat, he, signed, sealed and delivered the foregoing deed; on the' day and year, therein mentioned, to the aforesaid. John Fowlei-, James Teague, and Francis M. Roby: Given, &c.” .• ., ■
    To the ad mission'of the deed, thus certified «5 a registered' deed, the defendant'objected; but the’Court overruled the objection, and the defendant excepted.
    Perry, the grantor; was then introduced as a witness-to prove the>considertionof the deed; hewas objected to by the defendant,, and the objection being overruled; the defendant excepted. ■
    It also appears by the bill of exceptions; that the defendant justified under certain-pxecutions-againsí'Perry, buP they were excluded from the jury. • ,
    A verdict was found for the plaintiff, on which judgment was’ given. The defendant now assigns as error:
    1. The admission of the deed'as. a registered deed.
    
    , -2. The admission of Perry, the grantor, asa witness;- ....
    McClung, for the plaintiff in error:
    . Hopkins, contra, submitted the case without argument, upon' briefs; . .
   GOLDTHWAITE, J.

The first question raised by the assignment of errors’ is, whether the deed, given in evidence in this case, was properly admittsd to record under the statute' Which requires the registration of deeds of trust within a limited-period.

We think this question is similar to one decided in the case of Bradford v. Dawson & Campbell, 2 Ala. Rep. 203, where we considered that a substantial compliance with the requisitions of the statute, would be sufficient. It is true, that the acknowledgment was of a delivery of the deed to the' cestui’que trust, and not to the trustee, who is the grantee named'in-the .deed.

The delivery to the beneficiaries of the trust, we consider equivalent to a‘delivery to the grantee, and'therefore, t he deed was properly admitted to record; it follows then that there was no error in admitting the certificate, as proof of its registration.

The other question' respecting the admission of the grastor, as a witness, to prove the consideration of' the deed', although assigned as error,' is not noticed in the brief submitted ■with the record, and if the case had been argued,-and the counsel had then omitted'to raise the question, we should not have examined it, but according to our course of practice have considered it .as waived. As however, the - case is submitted- on the errors assigned; we do not' feel warranted in- considering the point as waived;

In general, the grantor; is- not' a-competent witness-to support the title of his grantee. Hermance v. Vernay, 6 Johns 5; Pruit v. Lowry, 1 Porter, 101; Holmam v. Arnett, 4 Porter, 63. But with us he is -held an indifferent- witness, when the contest is between an attaching creditor and his own vendee. McKernzie v. Hunt; 1 Porter, 37; Holman v. Arnett, 4 Porter 63.

The case here ■ presented is that of a grantor who has a re* suiting-trust to the excess which shall remain after the application of the property conveyed, to the discharge of the debts secured by the deed of trust; he is-therefore in effect called to support his'own title. •

Nor does the fact, that he was called only to prove the com sideration of the deed; make such a distinction as to-render him competent, because the effect of such testimony may be to sustain his resulting interest, as-well'-as his grantee’s title.

We think he was -improperly admitted-, and' for this'error,the judgment is reversed, and the- cause -remanded.  