Opinion
7 Div. 600.
November 26, 1926.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
T. C. Sensabaugh, of Anniston, for appellant.
An acknowledgment taken before a daughter of the grantee is voidable. 1 C. J. 808, 810.
Knox, Acker, Sterne Liles, of Anniston, for appellees.
The appellant having an equity only in the property, and not the legal title, it is not material whether or not the notary was qualified to take the acknowledgment. Bethea v. McCullough, 195 Ala. 480, 70 So. 680.
Appellant seeks the cancellation of a deed to a certain house and lot in Hobson City, Ala., executed by her to appellee Pinson, on June 28, 1921. It was complainant's contention that said Pinson obtained the deed to said property for an inadequate consideration, upon actual fraudulent representations made as to the instrument that was being signed. Respondents' testimony is contradictory to that of complainant, both as to the amount of consideration for the deed and as to any fraudulent representations, and he (Pinson) insists the transaction was a fair and open sale, consummated as a result of complainant's voluntary offer and suggestion.
The case presents only a question of proof. We consider a discussion of the evidence unnecessary. It has been carefully considered by the court in consultation and is in irreconcilable conflict upon all material points. The trial court saw and heard the witnesses, and his conclusion of fact will not be overturned, unless this court is convinced it is plainly wrong. Upon due consideration, we conclude that the finding of the trial court should not be here disturbed.
Appellant had no legal title, but only an equitable interest in the property by reason of a contract to sell and convey, upon which there was a balance due. An execution of a deed was therefore not necessary, or that her contract should be acknowledged. While the transaction took the form of a deed, it is to be construed and considered as a contract transferring her equitable right under her contract to purchase. The officer taking the acknowledgment also signed as a witness. It is insisted that the relationship of this officer to the grantee was such as to disqualify her from taking a valid acknowledgment. But the foregoing considerations suffice to show that neither deed nor acknowledgment was essential and that the contract was valid without reference to such acknowledgment. It is to be noted that no question is here presented as to conveyances by a married man of the homestead.
The following authorities sustain the conclusion that the insistence as to the invalidity of the instrument here in question on account of any defect of acknowledgment is without merit. Bethea v. McCullough, 195 Ala. 480, 70 So. 680; Henderson v. Kirkland. 127 Ala. 185, 28 So. 674.
The decree is free from error and will be here affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.