This cause was reversed for the failure of plaintiff to show a legal execution of the mortgage upon which he relied for recovery. We remanded the case for new trial. Appellant has now filed application for rehearing, insisting that we reverse and render and not remand the cause. This application must be overruled, as we are still persuaded the ends of justice will be best subserved by a remandment for new trial.
Inasmuch, however, as the question of the proper execution, vel non, of appellant's mortgage will arise upon another trial, we deem it proper to say that a personal property mortgage executed by a maker (whether the maker can or cannot write his name) by having another, in his presence, and by his direction, to sign the maker's name thereto, would be a validly executed instrument. This has been long the law of this state. Hamilton v. Adams, 214 Ala. 440, 108 So. 1; Goldsmith v. Gates, 205 Ala. 633,88 So. 861; Wright v. Forgy, 126 Ala. 389, 28 So. 198; Middlebrook v. Barefoot, 121 Ala. 642, 25 So. 102; Consolidated Motor Co. v. Malik, 207 Ala. 120, 92 So. 262; Lewis, Adm'r v. Watson, 98 Ala. 479, 13 So. 570, 22 L.R.A. 297, 39 Am. St. Rep. 82. The rule of the above decisions was not changed by the amendment of section 3355 of the Code of 1907, which section, as amended, appears as section 6838 of the Code of 1923. This latter section deals specifically with conveyances of land. The appellant's mortgage, in the state of the evidence when offered, was admissible, and the court should have overruled the plaintiff's objection thereto. The ruling of the court in refusing to allow defendant to read his mortgage in evidence was therefore erroneous. Whether the mortgage was in fact properly executed was a question to be determined by the court, or jury trying the case, upon a consideration of all the evidence.
We are still convinced that the ends of justice require a reversal and remandment of the cause for a new trial.
The appellant's application for rehearing is accordingly denied.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.