Jernigan v. Gibbs

*94 SOMERVILLE, J. [1] 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 South. 391, citing McEvoy v. Leonard, 89 Ala. 455, 8 South. 40; Wheat v. Wheat, 190 Ala. 461, 67 South. 417; Carson v. Sleigh, 201 Ala. 373, 78 South. 229. The case of Keaton v. Terry, 93 Ala. 85, 9 South. 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. [2] 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 South. 492; Barnes v. White, 195 Ala. 588, 71 South. 114; Guin v. Guin, 196 Ala. 221, 72 South. 74. [3] 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 ahd required the decree rendered by the court. Oounsel 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, O. J., and McCLELLAN and THOMAS, JJ., concur.