Page:Federal Reporter, 1st Series, Volume 10.djvu/60

 ^8 FEDERAL BBPOETEB. �when it was apparent that his land might be needed to answer the trusts of the -will, this deed of gift was proved by Joel L. Pulliam, one of the subscribing witnesses to it, who states that he eigiied the name of the other witness, and saw him make hia mark, the said other witness being then dead, and on this proof the deed is registered. This proving of the deed took place nearly seven years after the death of the testator, and there is no explanation found in the answers or in the proof of any of these cireumstances; and the possession of this paper from the time of its execution till now is not shown to have been in Alfred B. Pulliam, except by the production of it by his counsel at the argument of this case. Its delivery is proved in no other way than by the statement of Joel L. Pulliam, one of the subscribing witnesses, before the clerk authorized to take proof of deeds, that the testator aoknowledged the instrument, in his presence, to be his act and deed, for the purposes therein contained. This would be sufficient, ordi- narily ; but it seems to me, under the cireumstances of this case, nearly seven years after the death of the grantor, these parties should have shown something in explanation of the long delay in proving this instrument for registration, if it bad been duly delivered and relied on as a muniment of title, particularly where it is admitted that pos- session of the land did not accompany the deed. The registration of it does not prove it, for it has not been proven and registered accord- ing to law. Joel L. Pulliam, the subscribing witness, was not com- petent to prove the signature of the other witness, (in this case written by himself and signed with a mark.) The Code of Tennessee, § 2055, enacts that "if all the subscribing witnesses be dead, * * * except one, he may prove the execution of the instrument before the clerk or deputy clerk of the couaty court, the handwriting of the other person being proved by some other person ;" and the act of 1869, c. 122, § 1, (Code, 2055a,) requires that the proof of the handwriting of the deceased subscribing witnesses shall be by two persons ac- quainted with his handwriting. It is, therefore, plain that this deed is not admissible in evidence and must be excluded. This view of the case renders it unnecessary to inquire as to the effect of a deed of gift granting the land after the date of a will devising it ; or whether the devisee, if he takes part under the will, must be held to take the whole under it. �It further appears, in reference to this Isbell plantation, that the testator and Joel L. Pulliam originally purchased it jointly, each own- ing an undivided half. The deed to them is dated June 30, 1856, and conveys the land absolutely for $e,400, acknowledged to be paid. ��� �