The complaint was in two counts declaring on a promissory note executed on the 4th day of May, 1920, and payable on the 1st day of October. The complaint contained an allegation that defendant had waived his claim to exemption. There was a plea of non est factum.
Plaintiff introduced evidence tending to prove the consideration, and witness testified, defendant not being able to sign his name, that, at defendant's request, witness signed defendant's name and defendant made his mark. The note was then introduced in evidence, and contained, besides the promise to pay, a waiver of exemptions and a mortgage on certain personal property. This in- his strument was signed Z.X.T. Morris, and had mark no attesting witness. It was shown that Morris could neither read nor write, and there was no evidence that the payee or its agent signed the note. The court gave at the request of defendant, Morris, the affirmative charge as to him and this action is assigned as error.
Under the evidence offered by plaintiff, Morris was primarily liable for the fertilizer for which the note was given, and, even if the signing of the note in the manner testified to did not bind Morris as to the waiver of exemptions and was not valid as a mortgage, he would be liable on the promise to pay. Brown v. Bamberger, Bloom Co., 110 Ala. 342-355, 20 So. 114; Penton v. Williams, 150 Ala. 153, 43 So. 211.
Eliminating that part of the instrument, ineffective by reason of the statute, there is still left the promissory note of Morris. Under the common law the execution of an instrument by mark is sufficient, and we know of no statute changing the rule. McGowan v. Collins, 154 Ala. 299, 46 So. 228; Penton v. Williams, 150 Ala. 153, 43 So. 211; Jackson v. Tribble,156 Ala. 480, 47 So. 310.
The judgment is reversed, and the cause is remanded.
Reversed and remanded. *Page 671