
    Lewis, Adm’r v. Watson.
    
      Statutory Action of Ejjectmmt.
    
    1. Estoppel. — A defendant in ejectment who claims under the title derived from the plaintiff, who has recognized plaintiff’s former title by purchase at sheriff’s sale, and claims to hold adversely under such purchase, is estopped from denying plaintiff’s said original title.
    2. Executing deed by hand of another'in presence of grantor. — Where the signature of the grantor is affixed to the deed by another in the presence, and at the request of the grantor, the deed is as binding as if he had personally affixed his signature.
    3. Delivery of sheriff’s deed; what constitutes. — In the absence of a contrary intention, the delivery of a sheriff’s deed to the recording officer for record, constitutes a delivery of the deed to the grantee.
    4. Same. The fact that a grantee in a sheriff’s deed has pos ession of both the deed and the land thereby conveyed, is presumptive evidence of a due delivery of the deed. - - '
    5. When former recordin ejectment admissible. — In ejectment against one claiming under a sheriff’s deed, where plaintiff claims to have been in possession adversely for more than ten years after the date of defendant’s deed, the records of a former action in ejectment between the parties,by which defendant was placed in possession under such deed, are admissible to show the date of his possession.
    Appeal from Covington Circuit Court.
    Tried before tbe Hon. JOHN P. Hubbard.
    Statutory ejectment by Ezekiel "Watson against B. H. Lewis, as administrator of tbe estate of Alfred Holley, deceased. Defendant pleaded tbe general issue, and adverse possession for ten years. Tbe plaintiff bases bis right to recover upon a purchase of tbe lot in 'controversy from one John B. Dixon, in 1866, and contended that be occupied this lot under that purchase, continuously, until 1887 or 1888, when tbe defendant’s intestate took violent possession of tbe lot. ' Tbe defendant bases bis right and possession under a sheriff’s deed, executed on May 3, 1875, at which time tbe lot in controversy was sold under an execution issued on a judgment recovered against Ezekiel Watson. Tbe defendant introduced much testimony tending to show that be bad been in possession of said lot from tbe timé of bis purchase up to tbe institution of this suit, on June 9, 1890, with tbe exception of a short time, when Ezekiel Watson entered upon the lot clandestinely. It was also shown by tbe testimony for tbe defendant that be bad recovered juclgment in an action of ejectment against said Watson, in 1880. Upon tbe defendant’s offering to introduce in evidence a copy of said judgment, tbe plaiutiff objected. Tbe court sustained tbe objection, and tbe defendant duly excepted. Tliere were many exceptions reserved to tbe rulings of tbe court upon tbe evidence, and also to tbe giving and refusal to give certain charges, but the opinion of tbe court renders it unnecessary to notice them in detail.
    John Gamble, for appellant.
    J. W. Posey, for appellee.
   McCLELLAN, J.

This is a statutory action for tbe recovery of a certain lot of land in tbe town of Andalusia. Watson is plaintiff and Lewis, as administrator of one Holley, deceased, is defendant. Plaintiff derives title from one Dixon by deed appearing to have been executed in 1866. Defendant claims title through Watson, under a sale and conveyance by tbe sheriff to bis intestate in 1875, made in satisfaction of certain judgments against Watson, and also by virtue of 'an adverse possession on tbe part of tbe intestate and himself subsequent to said sale and conveyance.

1. Some rulings were made on tbe trial in respect of Watson’s title to tbe land prior to tbe sheriff’s sale and conveyance of it as bis property to Holley, and upon testimony in relation thereto. These are of no importance in tbe case; and, whether erroneous or not in tbe abstract, need not be considered, since tbe defendant, claiming as be does under that title, and having recognized its validity by purchasing at tbe sheriff’s sale, and now further recognizing it by a reliance upon tbe acquisition of it through that sale and upon adverse possession since that time under tbe color of title with which at least be was invested by tbe conveyance then made by tbe sheriff, is not in a position to impeach Watson’s original title.—Ware v. Dewberry, 84 Ala. 568; Houston v. Farris, 71 Ala. 570; Tenn. & Coosa River R. R. Co. v. East Ala. R’wy Co., 75 Ala. 516, 525.

2. Tbe evidence as to tbe execution of tbe deed by tbe sheriff to Holley was that of tbe probate judge of tbe county, and as follows: “That J. A. Thompson, tbe sheriff, could not write bis name, and that be (tbe witness) frequently wrote in tbe sheriff’s office for said Thompson ; that be endorsed tbe levies on tbe execution here in evidence, and wrote tbe deed of Thompson as sheriff to Alfred Holley, dated May 3d, 1875; that said deed and endorsements of said levies are in bis band writing; that said J. A. Thompson was present when said deed was written; that it was written in tbe sheriff’s office, at Thompson’s instance and under his direction ; that after the deed was written Thompson told him to sign his name as sheriff to the deed, which he did, and then as judge of probate toot Thompson’s acknowledgment to the deed and carried' it into the probate office, and afterwards recorded it, - - - - an(j that some one came and got the deed from the probate office after it was recorded, but don’t now remember who it was.”

It is not entirely clear on this testimony that Thompson was actually and immediately present when his name was subscribed to the deed by Fletcher by his direction, but manifestly there was room for an inference to be drawn to that effect by the jury. If he was' so present, as the jury might have found, the subscription to the instrument was as efficacious as had he been able to write his name, and with his own hand had written it, or, he beihg unable to write his name, as if he had made his mark, and the words “his mark” had been written against it, and the signature thus made attested by two witnesses. This on the principle that where the grantor is present and authorizes another, either expressly or impliedly, to sign' his name to the deed it then becomes his deed and is as binding upon him to all intents and purposes as if he had personally affixed his signature. The reason for the doctrine is thus stated by Shaw, C. J.: “The name being written by another hand, in the presence of the grantor, and at her request, is her act. The disposing capacity, the act of mind, which are the essential and efficient ingredients of the deed, are hers, and she merely uses the hand of another, through incapacity or weakness, instead of her own to do the physical act of making a written signature. To hold otherwise would be to decide that a person having a full mind and clear capacity, but through physical inability incapable of making a mark, could never make a conveyance or execute a deed.”—Gardner v. Gardner, 5 Cush. 483; 1 Devlin on Deeds, §§ 232,233; Kime v. Brooks, 9 Ired. 218; Frost v. Deering, 21 Me. 156; Videau v. Griffin, 21 Cal. 390; Me. Rev. Stat. (1857), p. 56; Lovejoy v. Richardson, 68 Me. 386; Bird v. Decker, 64 Me. 551.

3. And it would seem that if the signing by Fletcher under the direction and in the immediate presence of Thompson was not in itself efficacious, the subsequent acknowledgment of the latter, as shown on the deed, would be a sufficient recognition and adoption of the signature as his own.—Bartlett v. Drake, 100 Mass. 174.

4. Certain it is that this acknowledgment relieves the deed from any infirmity which might otherwise have affected it on account of the signature not being attested, by witnesses. 1 Brick. Dig. p. 530, § 18 et seq.; 3 Brick. Dig. p. 298, § 18.

5. As we have seen, Eletcher, the probate judge, took the deed, after it was signed and acknowledged, for the purpose of recording it in his office. This, nothing appearing to the contrary, may well be considered as a delivery to him by the grantor for that purpose, and so considered, “there being no evidence to weaken the force of these facts,” this constituted sufficient proof of delivery to the grantee.—Elsberry v. Boykin, 56 Ala 336; Alexander v. Alexander, 71 Ala. 295; Sheffield Land, Iron & Coal Co. v. Neill, 87 Ala. 158.

6. And, moreover, at the time of the trial below, this deed was in the possession of the personal representative of the grantee who in that capacity had also the possession of the land in controversy, and was defendant to this action for its recovery. The presumption from this fact alone, unexplained, is that the execution of the instrument had been duly perfected by a delivery of it to the grantee— Cherry, Smith & Co. v. Herring, 83 Ala. 458; Simmons v. Simmons, 78 Ala. 365.

And our conclusion, therefore, is that it is shown by the evidence in this record, that there was an efficacious delivery of the deed by the grantor, the sheriff, to the grantee, Alfred Holley.

7. It is stated in the bill of exceptions immediately following the copy of the deed, that “the Jordan lot No. 1,' in the above deed was interlined in different hand write from the body of the deed.” This “Jordan lot, No. 1” is the lot involved in this suit. "We need only say in this connection that this statement is not borne out by a reference to the original deed, which is before us by order of the trial judge. The lot in controversy, leaving out of view the interlineation, is therein described and conveyed as “lot No. 1, east of the public square,” and it clearly appears that this lot No. 1 on the east side of the public square is the Jordan lot. This would have been a sufficient description in the particular under consideration had nothing more been said; but it seems that the grantor did not think so, and for the purpose of curing what might be supposed to be an insufficient description, he interlined, the interlineation and the body of the deed being deary in the same hand writing, the words, “the lot known as the Jordan lot.” Manifestly, the inter-lineation accorded “with all the purposes and objects of the deed,” the fair presumption is that it was made before the acknowledgment of execution; and the burden of repelling tbe presumption rested on the plaintiff.—Sharpe v. Orme, 61 Ala. 263.

8. Tbe fact that Fletcher endorsed tbe levies under wbicb tbe sale was made on tbe executions for tbe sheriff is of no consequence. Even were it essential to tbe validity of defendant’s deed that tbe return should have been made by tbe sheriff, tbe facts here show an adoption and ratification by tbe latter of tbe endorsement made by Fletcher so as to make it bis own; and it was bis own in tbe first instance, if entered by Fletcher by bis direction and in bis presence. But tbe return of tbe levy is not essential to tbe validity of tbe sheriff’s deed to tbe purchaser at execution sale.—2 Freeman on Execution, § 341; Forrest v. Camp, 16 Ala. 642; Love v. Williams, 5 Ala. 58; Driver v. Spence, 1 Ala. 540.

9. It follows from what we have said, that if tbe jury believed that Fletcher signed tbe sheriff’s name to the deed we have been discussing at tbe instance and in tbe presence of tbe latter, as is inferable from tbe evidence, Holley acquired a perfect title to tbe land in question on May 3d, 1875, when that deed was executed. It is not pretended that there has been any conveyance of this title by Holley or bis privies in estate since that time, nor is it pretended that Watson has received a conveyance of this land from any source since that time. Tbe legal title to tbe lot, therefore was, at tbe time, and for all tbe purposes, of tbe trial in tbe estate of Holley, and represented in this action by tbe defendant Lewis, as bis administrator, unless Watson for some period of ten years after May 3d, 1875, and prior to tbe institution of this suit, bad been in the open, adverse, uninterrupted possession under a claim of right; and that is really, we take it, tbe main question in issue in tbe case. On that issue, it would, we think, be competent for tbe defendant to show by tbe records of tbe Circuit Court in a former action of ejectment between these parties that Holley recovered therein against Watson and toas put into possession of tbe land under a writ of assistance in May, 1880, as going, not in bar of this action for a former recovery but, to show that at tbe time referred to Holley and not Watsoü was in possession. It would, in our opinion, also be competent for tbe defendant to show any admissions or statements made under oath or otherwise by tbe plaintiff subsequent to 1875 to tbe effect that tbe land was another’s, and not bis as going to show that at tbe time they were made be was not in possession of tbe lot, under a claim of ownership, and as also tending to impeach bis' evidence in that regard. on another trial of this canse, should it then he the same or like that on the trial which we are now reviewing.

Many rulings of the trial court on the admission of evidence and in respect of charges given and refused are out of harmony with the foregoing opinion.

What we have said will suffice for the Circuit Court’s guidance on another trial without a specification here of the particulars in which error appears by this record.

Reversed and remanded.  