Opinion
4 Div. 908.
April 21, 1921. Rehearing Denied May 19, 1921.
Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.
J. A. Carnley, of Elba, and J. J. Mayfield and Henry C. Meader, both of Montgomery, for appellant.
The bill was subject to the demurrers. 89 Ala. 455, 8 So. 40; 93 Ala. 85, 9 So. 524. Jernigan had transferred and sold all his right, title, and interest in the subject-matter prior to the transaction that he sought to testify about, and was therefore a competent witness as to a transaction with the deceased agent of the complainant. 127 Ala. 137, 28 So. 679; 163 Ala. 376, 50 So. 937; 174 Ala. 521, 56 So. 571; 174 Ala. 322, 56 So. 965. As applicable also to this particular case, see 50 Ala. 470; 58 Ala. 463; 65 Ala. 294; 88 Ala. 493, 7 So. 296; 110 Ala. 418, 18 So. 13; 195 Ala. 508, 70 So. 169.
W. W. Sanders, of Elba, for appellee.
The allegations of the bill were sufficient. 180 Ala. 102, 60 So. 391; 189 Ala. 149, 60 So. 79; 185 Ala. 50, 64 So. 67.
Jernigan was not competent to testify to the transaction of the deceased agent. Section 4007, Code 1907; 65 Ala. 229; 195 Ala. 588, 71 So. 114; 196 Ala. 221, 72 So. 74; 199 Ala. 589, 75 So. 9; 124 Ala. 199, 26 So. 984; 123 Ala. 610, 26 So. 648; 168 Ala. 469, 53 So. 228; 191 Ala. 146, 67 So. 994; 78 So. 381.
A bill in equity for the sale of lands for partition sufficiently shows a necessity for the sale when, following the language of the statute, it alleges that the lands in question cannot be equitably divided without a sale thereof. Such an allegation is not subject to demurrer on the ground that it is a mere conclusion, and not the statement of a fact. Smith v. Witcher, 180 Ala. 102, 60 So. 391, citing McEvoy v. Leonard, 89 Ala. 455, 8 So. 40; Wheat v. Wheat, 190 Ala. 461, 67 So. 417; Carson v. Sleigh, 201 Ala. 373, 78 So. 229. The case of Keaton v. Terry, 93 Ala. 85, 9 So. 524, is not in conflict with our recent decisions, for the reason that the allegation there criticized was that the lands could not be "fairly and equally" partitioned. The demurrer to the bill was properly overruled.
In the construction of section 4007 of the Code, which excludes parties and interested persons from testifying as to "any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding, or when such deceased person, at the time of such transaction or statement, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced," this court has always applied the rule of exclusion to cases coming within its spirit and policy, though outside of its letter, if strictly interpreted. The basic principle, as stated by Brickell, C. J., in Boykin v. Smith, 65 Ala. 294, 299, is that, "if death has sealed the lips of one party, the law intends, as to this species of evidence, to seal the lips of the living," and in that case it was held that "A conveyance with or without warranty, or a transfer of the subject-matter of the suit to another, cannot enable the living party to testify."
The clear effect of our decisions is that as to all such testimony the living party to the original transaction is not a competent witness in favor of those who claim under him as against either the deceased party, or the deceased agent's principal, or against those who claim in privity with such persons, whether by descent or purchase. Louis' Adm'r v. Easton, 50 Ala. 470; Key v. Jones, 52 Ala. 238, 247; Boykin v. Smith, 65 Ala. 294; Hodges v. Denny, 86 Ala. 226, 228, 5 So. 492; Barnes v. White, 195 Ala. 588, 71 So. 114; Guin v. Guin, 196 Ala. 221, 72 So. 74.
In view of this settled construction of the statute, we are constrained to hold that Jernigan, the mortgagor and husband of this defendant, who claims by deed from him, was not a competent witness to show payments of money on the mortgage debt made to Harper, the deceased agent of Mrs. Gibbs, the mortgagee, in any controversy over the title, either against Mrs. Gibbs herself, or against this complainant, who is her successor in estate by purchase. Guin v. Guin, supra. That testimony having been properly excluded by the trial court, the evidence in the case justified and required the decree rendered by the court.
Counsel for appellant cite cases which lay down the general requirements of interest on the part of the witness, and also of the estate of a deceased person; but those cases did not involve, and hence their general statements are not applicable to, those cases involving privity in interest or estate, to which the protection of the statute has been uniformly extended by judicial construction.
The record does not show error, and the decree will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.
On Rehearing.
Counsel for appellant conceive that the principle of exclusion which we have applied to the testimony of her husband, with respect to his alleged payment of the mortgage debt, is misapplied, for the reason that that alleged transaction with Mrs. Gibbs' now deceased agent occurred long after appellant's husband had conveyed his interest in the land to her. Appellant's contention is, in short, that by that conveyance of the land her husband freed himself from the testimonial disqualification of an interested party as to any subsequent transactions or statements, which would otherwise have fallen under the ban of the statute. Code, § 4007.
This contention would be sound enough, if his interest in the land had been the only interest affecting his testimonial capacity; but it overlooks the fact that the husband remained liable for the mortgage debt, as to which he was the sole obligor, and in the payment of which he was acting for himself. He therefore comes within the rule of disqualification laid down by the decisions; and, since he would be disqualified to testify to the transaction in question if he were a present party, he is equally disqualified to testify in favor of one who holds, in privity with himself, the subject-matter affected by that transaction.
For this reason, we adhere to our ruling, and the application for rehearing must be overruled.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.