McCalla v. American Freehold, &c., Co.

*114 Judgment reversed.

The testimony showed that the claimants lived with their father on the laud in dispute, up to his death eight or nine years before the trial, and had been in possession ever since. John L. McCalla died about four years before the trial. He was never in possession of the land in dispute. The claimants were not present when the deed from them to John L. McCalla was signed. Their names were signed thereto by their brother, Robert McCalla, who testified that he went with one Grant, to witness the deed, to the house of Sparks, J. P., and in a short while John L. McCalla. came. "Witness asked him what about the deed, and he replied, “ It is all right.” Witness then signed his sisters’ names; he was not authorized' by them to do so, and they had never ratified it. John L. was an honest man- in whom he had full confidence, and he had never deceived him. He signed his sisters’ names to the other deed conveying land to John L. McCalla, which was made at the same place and executed before the same witnesses. He and his brothers Hugh and John made a deed to his sisters to this land about the same time, which land in a day or two was conveyed by this deed to John L. McCalla; they divided up the estate of their father in this way. Witness lives with his sisters, and Hugh lives on a piece of the land. His sisters told him, when they were discussing the making of the deeds distributing the estate of his father, to go ahead and act for them, and if necessary, to make the deeds. Witness, his sisters and Hugh knew that John L. borrowed money on the land so conveyed to him, but none of them, so far as witness knows, ever got any of the money. Sometime after he had signed his sisters’ names to the deed, he told them of it and they said nothing. He always thought he had the right to sign their names, and never heard of any complaints until after the death of John L. McCalla. Sparks testified substantially to the same effect as Robert McCalla, concerning the circumstances of the signing of the deed in question. He did not remember whether they came to his house more than once or not. The claimants never came there to sign any deeds. The claimants testified that none of them ever signed a deed to J. L. McCalla to the land in dispute. They never authorized any one to sign their names to any deed conveying land to J. L. McCalla, except fifty acres which their family understood he was to have during their father’s life. They authorized R. H. McCalla to sign their names to a deed conveying to J. L. McCalla fifty acres of lot 219, which belonged to their father during his life and which they all knew he intended to give to J. L. McCalla.

The motion for new trial alleges that the verdict is contrary to law and evidence, and assigns error upon the following instructions in the charge of the court: “ If the claimants authorized R. II. McCalla to convey the land claimed by them to John L. McCalla, verbally, and he did so, and John L. McCalla then conveyed it to the plaintiff and borrowed money upon it, they were bound by it, and you should find for the plaintiff. If R. II. McCalla deeded the land claimed to J. L. McCalla, and the claimants afterwards ratified it, they were bound by it, and you should find for the plaintiffs.”

Error is further assigned on the refusal to charge as follows : “ The authority to another to make a deed to land in this State must be in writing, and if R. II. McCalla, at the time he signed the names to the deed of the claimants to J. L. McCalla, had no authority in wilting, the deed is void and did not pass any title to J. L. McCalla, and you would find for the claimants. If the claimants did not ratify the acts of R. L. McCalla in signing their names to the deed to J. L. McCalla to the land claimed, in writing, then it was no ratification. If the claimants were in possession of the land claiming it as their own, this was notice that they claimed the property.”

C. J. Thornton, B. II. Walton and H. C. Cameron, for plaintiffs in error. J. H. Worrill and L. L. Stanford, contra.