The assignments of error are rested upon the refusal to grant the motion for a new trial by the Windsor Realty Company. This is the third appeal by that company. 202 Ala. 17, 79 So. 355;210 Ala. 314, 97 So. 822.
In Godfrey v. Vinson (Ala. Sup.) 110 So. 13,1 under Code of 1923, § 6434, held that bill of exceptions will not be stricken or disregarded by court ex mero motu because not presented or signed within the time prescribed by law, but only on motion to strike duly made and submitted with the cause.
Appellant's counsel state that the sole assignment of error is the refusal of the court to grant plaintiff's motion for a new trial on the four grounds stated. We will consider the same as assigned. Affirmative charge was properly refused under Doe ex dem. Windsor Realty Co. v. Finnegan, 202 Ala. 17,79 So. 355; Id., 210 Ala. 314, 97 So. 822; McMillan v. Aiken, 205 Ala. 35,40, 88 So. 135; White, McLane Morris v. Farris, 124 Ala. 461,27 So. 259; Western Union Tel. Co. v. Louisell, 161 Ala. 231,50 So. 87.
There were conflicts in evidence as to the validity of the deed in question. Conflicts in evidence or adverse inferences to be found in the evidence were as to whether Mrs. Finnegan did or did not sign a deed to the land. Mrs. Leveille, a daughter, said it was not the handwriting of Mrs. Finnegan, and she was required to rewrite her name, and the two signatures were before the jury; and the evidence of Smithson contained adverse inference as to the grantor. Moreover, there were adverse inferences to be found in the evidence of Mrs. Mills' marriage to Finnegan.
The exception to the alleged illegal argument of counsel was not ruled on by the court, and there was no motion to exclude or motion for a continuance asked. There was a difference of opinion of counsel as to the evidence showing the facts commented upon. The court instructed the jury they would have to remember the evidence, and that counsel had the right "to argue the evidence, but not to argue what is not the evidence." If the argument in question was improper, it was not such as required a reversal in the absence of due exception. Ala. Power Co. v. Goodwin, 214 Ala. 15, 106 So. 239; Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Davis v. Quattlebaum, 210 Ala. 242, 97 So. 701; Anderson v. State,209 Ala. 37, 95 So. 171; Watts v. Espy, 211 Ala. 502, 101 So. 106; Ala. Great Southern R. Co. v. Grauer, 212 Ala. 197,102 So. 125.
The motion for a new trial was also rested upon the giving of the following charge:
"If the jury are reasonably satisfied from the evidence that the defendant was the wife of Thomas Finnegan at the time that the paper purporting to be a deed from M. E. Mills to N. Smithson was executed, and was then living with him as his wife, then such paper was not binding on defendant Mrs. Finnegan as a deed."
It hypothesized the reasonable satisfaction of the jury from the evidence that the defendant was married at the time the purported deed from Mills (Mrs. Finnegan) to Smithson was executed; then, it was not a valid conveyance and binding on the defendant. Such is the law of conveyances by married women not executed by the husband.
The litigation should end.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.
1 215 Ala. 166.
On Rehearing.