[Johnson v. Goff.]

the name of J. W. V. Maughon, husband of Hattie F. Maughon, did not appear in the body of said deed of trust as grantor. The court sustained the said objection, and refused to allow the deed to be introduced in evidence, and the plaintiff excepted. The court also, and for the same reasons, on the objection and motion of defendant, excluded the said deed from Goldsmith, trustee, to plaintiff, and plaintiff excepted. In consequence of the adverse rulings of the court in excluding the said deed of trust and the deed from Goldsmith to the plaintiff, the plaintiff took a non-suit with a bill of exceptions.

The plaintiff appeals, and assigns as error the rulings of the trial court upon the evidence in excluding the deeds offered in evidence.

J. E. ACKER, for appellant.

SOLLIE & KIRKLAND, contra, cited Davidson v. Cox, 112 Ala. 512; Blythe v. Dargin, 68 Ala. 370.

BRICKELL, C. J.-Appellant claimed title to the land in controversy as a purchaser at a foreclosure sale had under the power contained in a deed of trust executed in the year 1891, by Hattie F. Maughon to J. W. Goldsmith, trustee, to secure a loan made to her by the Atlanta National Building & Loan Association. This instrument purported in the granting clause and body thereof to be the deed of Hattie F. Maughon only, her name alone appearing therein, but was signed and acknowledged by herself and J. W. V. Maughon, her husband. The latter's name nowhere appears in the body of the instrument, nor does anything appear therein to indicate any intention on his part to become a grantor. Assuming a fact most favorable to appellant, that the land described in the deed was the property of the wife, the only question involved in the case is, whether, under the statute regulating the manner in which a married woman may alienate her real estate, this deed was efficacious to divest the title of Hattie F. Maughon. Sec. tion 2348, Code of 1886, reads: "The wife * not alienate her lands, or any interest therein, without the assent and concurrence of the husband, the assent and concurrence of the husband to be manifested by his

* *

can

[Mitchell v. Commissioners Court of Coosa County.] joining in the alienation in the mode prescribed by law for the execution of conveyances of land." In construing this statute in Davidson v. Cox, 112 Ala. 512, we held that the assent and concurrence of the husband could be manifested only by his joining in the alienation in such a way as would be necessary to a conveyance of his interest in the land if it belonged to him in severalty, or jointly, or in common with others. It is well settled by the decision of this court that when a deed of conveyance is subscribed by more names than one, and some of the subscribers' names are not shown in the body or granting clause, while others are there shown, such instrument is not the deed, and does not convey the interest, of those whose names are omitted from the granting clause and shown only in the signatures, when there is nothing in the deed to indicate an intention on their part to become grantors.-Sheldon v. Carter, 90 Ala. 381; Hammond v. Thompson, 56 Ala. 589; Blythe v. Dargin, 68 Ala. 370; Harrison v. Simons, 55 Ala. 510. It is manifest, therefore, that the husband did not join in the conveyance in controversy in such a manner as would have been been necessary to convey his interest in the land if it had been his property, and it results that the assent and concurrence of the husband were not expressed in the only mode in which the law authorized its expression.-Blythe v. Dargin, supra. The instrument was nothing more than the void deed of the wife, inoperative to divest her title in the land, and was properly excluded from the jury.

The judgment of the court below is affirmed.

Mitchell v. Commissioners Court of Coosa County.

Application for Writ of Certiorari or Supersedeas.

1. Commissioners' court has power to vacate void order.-A commissioner's court has power and authority, ex mero motu, to set aside a void order made by it at a former term changing a public road.

[Mitchell v. Commissioners Court of Coosa County.] APPEAL from the Circuit Court of Coosa. Heard before the Hon. J. M. CARMICHAEL. The commissioners court of Coosa county, upon a petition by the appellant and other named citizens of said county, made and entered on the minutes of the court an order or decree changing a public road. At a subsequent term, the court entered an order declaring the former decree void, and ex mero motu set aside said decree and ordered the road which was changed to be re-established. The original petitioner then filed his application, addressed to the judge of the circuit court, asking for a writ of certiorari to review and to have the last order of the commissioners set aside, and that the overseer of the road be restrained from complying with the order of the court.

On the submission of the cause, the circuit court held that the decree of commissioners court at a subsequent term, setting aside the former void decree, was correct, and, therefore, ordered that the certiorari issued in accordance with the petition be quashed. From this judgment of the court the present appeal is prosecuted, and its rendition is assigned as error.

FELIX L. SMITH, for appellant.-The void order of the court could only be set aside on the application of the party interested.—Baker v. Barclift, 76 Ala. 414; Glass v. Glass, 76 Ala. 368; Buchanan v. Thomason, 70 Ala. 401.

E. V. JONES and J. E. COBB, contra, cited Glass v. Glass, 76 Ala. 370.

COLEMAN, J.-It seems to be conceded by counsel for appellant that the judgment or order of the commissioners court changing the public road was void on its face, upon the ground that the judgment did not affirmatively show the jurisdictional facts. In this aspect of the record, the only question presented for revision, and the only one argued by counsel, is whether the commissioners court, at a subsequent term, had the power and authority, ex mero motu, to set aside the void order or judgment. We do not think the question admits of a doubt. The fact that in the cases cited on brief of appellant's counsel, the void orders were set aside upon the motion of some party interested, furnishes no argu

[Oldacre, Admr., v. Butler.]

ment in favor of the proposition that without such motion, the court had no jurisdiction to set aside its former void order. In a case like the present, where the public are directly interested, it was the duty of the court to have proceeded as it did, and vacate its former order, by which the public road was illegally changed. Moore v. Easley, 18 Ala. 619; Commissioners Court v. Hearn, 59 Ala. 371; Pettus v. McClannahan, 52 Ala. 55; Glass v. Glass, 76 Ala. 368; Commissioners Court v. Thompson, 18 Ala. 694.

Affirmed.

Oldacre, Admr., v. Butler.

Proceedings to dismiss levy of Execution.

1. Levy of execution; national bank stock subject to levy.—The shares of stock in a national bank may be levied upon and sold under execucution issued against the owner thereof, when the levy and sale will not interfere with the operation of the bank as a governmental agency.

APPEAL from the Circuit Court of Morgan.

Tried before the Hon. O. KYLE, Special Judge.

J. F. and G. W. Butler recovered, in April, 1896, a judgment against H. S. Freeman in the circuit court of Morgan county, for the sum of $664.45 and cost of suit, and after the adjournment of the term of the court in which said judgment was recovered, execution was issued thereon, and went to the hands of the sheriff of Morgan county, and alias and plures executions were issued on said judgment and placed in the hands of the sheriff of Morgan county, after the adjournment of each term of the court. The last of said executions issued April 3, 1897, and was placed in the hands of one S. P. Ryan as sheriff of said county, and was by him levied upon ten shares of the capital stock of the First National Bank of Decatur, Alabama, and notice of said levy was given W. W. Littlejohn as cashier of the bank, and to appellant, W. H. Oldacre, as the administrator of the estate of H. S. Freeman; the latter having died subsequent to the rendition of said judgment, while execution was in the

[Oldacre, Admr., v. Butler.]

hands of the sheriff, and prior to the issuing of the execution of April 3, 1897, which was, as stated above, levied on said ten shares of stock.

At the spring term, 1897, of the circuit court of Morgan county, appellant, W. H. Oldacre, as the administrator of Freeman, made a motion to have the levy on said ten shares of the capital stock of the First National Bank of Decatur vacated, upon the ground that stock in a national bank can not be levied upon and sold under execution. The court overruled this motion, and from this ruling of the court this appeal was taken.

W. R. FRANCIS, for appellant, cited Code of 1886, § 1673; Doty v. First Nat. Bank, 17 Law Rep. Ann. 259; Farmers, &c. Bank v. Dearing, 91 U. S. 29; 20 L. R. A. 196.

SPEAKE & RUSSELL, contra, cited 16 Amer. & Eng. Encyc. of Law, 195; Hager v. Bank, 63 Me. 509; In re Braden's Estate, 30 Amer. Rep. 746.

HEAD, J.-We regard the principle ruled in Winter v. Baldwin, 89 Ala. 483, as applicable to this case, and of controlling influence upon its decision. The petition to vacate the levy upon the particular shares of stock, in question, alleges no fact going to show that the sale of that stock, and its transfer to another owner, by the process of execution, under our statute, would at all interfere with the operation of the bank as a governmental agency, offending the laws of the United States concerning national banks. If, as counsel suggests, the shares of officers of the bank could not be levied on and sold without putting such officers and directors out of office, and, consequently, that such a levy and sale would not be permitted because it would thus operate to obstruct the management of the bank, it will be time enough to say so, when that case arises. This petitioner is neither an officer nor director.

The ruling of the special judge was correct, and the judgment is affirmed.