Dawsey v. Kirven , 203 Ala. 446 ( 1919 )

On this hearing we have reached the conclusion that we were in error on the original hearing in holding that it was error without injury in admitting the power of attorney in evidence, for the reason that the ownership of the note was proven without dispute by other evidence. We are led to the present conclusion by the opinion and decision in the case of Piedmont v. Smith, 119 Ala. 57, 24 So. 589.

The record and questions in that case were very similar to the record and questions in this case. They are as near alike as you would expect to find records and questions in different cases; and we feel constrained to hold as was held in that case. In fact, that case, in a sense, construed statutes of this state as to pleadings and practice in such cases, and those statutes have been readopted with that construction on them, and we do not feel at liberty to depart therefrom.

The fault of our original holding was that the pleadings did not raise the question as to legal title of the negotiable notes in question, but only the question as to the plaintiff's ownership. While the paper was negotiable and was indorsed in blank, it was not sued on as such. The record shows that the trial was had as if it had been an action on nonnegotiable, and not commercial paper, and hence the rules we announced should not be applied to the case under the issues on which the trial was had. A failure to observe this led the writer of the opinion into the error. He desires to say, however, the fault was his, and not that of the attorneys or other Justices concurring.

It results, therefore, that the power of attorney was competent and important evidence under the issues on which the case was tried; and, if error to admit it in evidence, the error must work a reversal.

It is insisted that, the power of attorney being executed in the state of Georgia, it was not self-proving. The execution of the power of attorney purports to be under the seal of the grantor, and purports to be acknowledged before a notary in the state of Georgia; and a notarial seal or scroll appears on the instrument. But the acknowledgment of the notary does not refer to the seal, nor does he certify that it was given "under his seal," official or otherwise, but only that it was given under "his hand." The question therefore is presented: Was the execution of the instrument sufficiently proven by the acknowledgment of a foreign notary under his official seal? In other words, was the acknowledgment before a notary properly and legally authenticated by his official seal? While there is on the instrument what purports to be a seal, the notary does not certify that it is his official seal, and makes no reference whatever to it either in the body of the certificate or in the jurat thereof, but the certificate purports to be under "his hand" only, but not under "his seal."

Under our decisions we feel compelled to hold that the power of attorney was not self-proving. The notary's certificate was not attested by his official seal. While this court has repeatedly held that instruments the execution of which were acknowledged before foreign notaries, whose certificates of acknowledgment were attested by official seals, were self-proving, yet we have never held that affixing a mere scroll or wafer, purporting to be a seal, without any reference thereto by the officer in the body of his certificate, or in the jurat thereof, was sufficient authentication to make it self-proving. See Hart v. Ross, 57 Ala. 520; Ala. Co. v. Chattanooga Co., 106 Ala. 663, 18 So. 74; Gorree v. Wadsworth, 91 Ala. 416, 8 So. 712; Hill v. Norris, 2 Ala. 640; Toulmin v. Austin, 5 Stew. P. 410.

The case of Wetmore v. Laird, 5 Biss. 160, Fed. Cas. No. 17,467, is in point, and supports our holding, and we believe the reasoning thereof to be sound. We have a line of cases somewhat similar as to what is sufficient to make the execution of a given instrument under seal or not under seal. The following is a synopsis of the holdings of this court as to private seals and what is necessary to make the instrument a sealed or unsealed one: A notarial seal is not necessary to authenticate the certificate of acknowledgment of an Alabama notary. Harrison v. Simons, 55 Ala. 510. But at common law a notary was simply a commercial officer, and his official acts were known only by his official seals. Dunn v. Adams, 1 Ala. 527,35 Am. Dec. 42; St. John v. Redmond, 9 Port. 428. An instrument which on its face purports to be under seal will be so considered though there is no scroll opposite the signature. Shelton v. Armor, 13 Ala. 647. An instrument signed between several parties, preceded by the words, "Given under our hands and seals," followed by the seal after name of party, is a sealed instrument. Hatch v. Crawford, 2 Port. 54. Merely suffixing a clause containing the word "Seal" or the letters "L. S." after the name of a subscriber to the instrument does not constitute a seal; the purpose to seal it should be declared in the body of the instrument. Breitling v. Marx,123 Ala. 222, 26 So. 203. The mere suffixing a scroll containing the word "Seal" or the letters "L. S." to the name of the subscriber does not make it a writing under seal. Carter v. Penn, 4 Ala. 140; Blackwell v. Hamilton, 47 Ala. 470; Id.

We therefore hold that the purpose of the notary to affix his seal must appear in his certificate; otherwise the scroll or impression purporting to be a seal may have been placed on the document by another, and without the knowledge or official act of the notary. In other words, we, or the trial court, are not authoritatively informed that the certificate of acknowledgment of the foreign notary was by him authenticated by his official seal. There is no certificate that the scroll or impression is or was his official seal, or that it was so affixed or made by him as such notary.

It therefore results that it was error to admit the power of attorney in evidence, and the judgment below should be reversed. The application for rehearing is therefore granted, the judgment of affirmance set aside, and one of reversal rendered.

Application granted. Reversed and remanded.