Opinion
4 Div. 561.
March 17, 1932.
Appeal from Circuit Court, Henry County; H. A. Pearce, Judge.
W. L. Lee, of Dothan, and W. O. Long, of Abbeville, for appellant.
It was error to admit the warehouse book in evidence, without its being shown to be correct, in the handwriting of the party making the entries, and that the party had authority to make the entries and knew them to be correct. Bolling v. Fannin, 97 Ala. 619, 12 So. 59; Sands v. Hammel, 108 Ala. 624, 18 So. 489; McDonald v. Carnes, 90 Ala. 147, 7 So. 919; Tucker v. Tucker, 222 Ala. 595, 133 So. 714. It was error to permit the question to Couric asking to whom the draft was payable. The highest evidence of a written instrument is the instrument itself, and the evidence sought was not admissible without showing loss or destruction of the draft. Porter v. Watkins, 196 Ala. 333, 71 So. 687; Huggins v. So. R. Co., 159 Ala. 189, 49 So. 299; 21 C. J. 981. Testimony with respect to the renting of the place in question by the mortgagor for the years 1928, 1929, and 1930 was immaterial on the question of renting for 1927. It was erroneously admitted. Andrews v. Tucker, 127 Ala. 602, 29 So. 34; Ala. Lbr. Co. v. Keel, 125 Ala. 603, 28 So. 204, 82 Am. St. Rep. 265; Roden Gro. Co. v. Gipson, 9 Ala. App. 164, 62 So. 388; C. of Ga. R. Co. v. Teasley, 187 Ala. 610, 65 So. 981. Appellant was entitled to evidence showing payments on appellee's mortgage, and written receipts given in evidence thereof and the rule with reference to transaction with deceased persons does not apply to the testimony sought from McLendon showing payments by him to Boatman, who was dead. It was competent for McLendon to testify as to the substance of receipt given by Boatman to him. Miller v. Cannon, 84 Ala. 59, 4 So. 204; Wood v. Brewer, 73 Ala. 259; Code 1923, § 7721; State v. Consumers B. Co., 115 La. 782, 40 So. 45; Phillips v. Morris, 169 Ala. 460, 53 So. 1001; Butler v. Jones, 80 Ala. 436, 2 So. 300; First Nat. Bank v. Chaffin, 118 Ala. 246, 24 So. 80; Pugh v. Barnes, 108 Ala. 167, 19 So. 370; Wisdom v. Reeves, 110 Ala. 418, 18 So. 13; Ala. L. I. Co. v. Sledge, 62 Ala. 566; Dismukes v. Tolson, 67 Ala. 386; Howle v. Edwards, 97 Ala. 649, 11 So. 748. It was competent to show execution of the mortgage to appellant and the amount due thereon. Cook v. Malone, 128 Ala. 662, 29 So. 653; Ala. Securities Co. v. Dewey, 156 Ala. 530, 47 So. 55; Pollak v. Winter, 166 Ala. 255, 53 So. 339, 139 Am. St. Rep. 33.
R. W. Miller, of Abbeville, and O. S. Lewis, of Dothan, for appellee.
If there was error in introduction of the warehouse books, it was cured by the letter from McLendon to appellee stating that he had the cotton in said warehouse. The fact, testified to by Couric, that the draft given by him was payable to appellant, was merely collateral, and it was not necessary to produce the draft. The witness testified without objection that he paid appellant for the cotton. Evidence that McLendon rented the land for subsequent years was admissible to show the character of McLendon's possessory right therein and to explain his possession from 1925 to 1930. McLendon was properly denied the right to testify to a transaction with appellee's deceased agent. Unless the jury believed the mortgagor had a possessory interest in the land when the mortgage was executed to appellee, appellee would not have been entitled to recover. However many mortgages had been executed by him was of no relevancy, and there was no error in not receiving the mortgage offered by appellant.
There is no question as to the seniority of the appellee's mortgage, but the appellant contends that, as to the cotton grown on the Dunn place, McLendon, the mortgagor, had not rented the same when executing the mortgage to the appellee, but had done so when executing the mortgage to appellant.
McLendon had rented the place for 1926 and previous years and remained in possession the beginning of the year 1927, intending to remain on the place, and the law fixed the relation and rental contract the same as the one for the previous year unless the parties by agreement changed the terms. At any rate, McLendon was a tenant in possession of the Dunn land when he made the mortgage to the appellee. Therefore the trial court did not err in excluding the appellant's mortgage, and, as the undisputed facts established this relationship, the action of the trial court in permitting appellee to show that McLendon remained in possession several years subsequent to 1927, if error, was without injury.
Whether the appellee laid a sufficient predicate for the introduction of the Crawford Warehouse book matters not, as the fact was shown by undisputed evidence that the cotton in question was stored in said warehouse, that it was turned out upon the authority of the appellant, was sold by it, and that the said bank received the proceeds of the sale. And these facts were established independently of the books of the warehouse. McLendon wrote the appellee in October, 1927: "I have 21 bales in the Crawford warehouse in Abbeville."
The witness Couric testified he paid the appellant for the McLendon cotton, nineteen bales, and there was no error in permitting him to state that he did it by draft. This was not a case that called for the production of the draft, but with this eliminated the unobjected to evidence stands and shows that the appellant was paid for the cotton.
There was no error in not permitting the mortgagor, McLendon, to testify to payments made by him to the plaintiff's deceased agent, Boatner. The rule of exclusion applies to a party who is interested or under whom the interested party holds as to transaction with the deceased or a deceased agent. Jernigan v. Gibbs, 206 Ala. 93, 89 So. 196; Guin v. Guin, 196 Ala. 221, 72 So. 74. While McLendon was not a party to the cause, he was the mortgagor and is regarded as an interested party.
The judgment of the circuit court is affirmed.
Affirmed.
BROWN, FOSTER, and KNIGHT, JJ., concur.