Dearing v. Windham

GOLDTHWAITE, J. We think an examination of this case will show, the interest of the witness is entirely balanced between these parties. Conceding there is a trust resulting to him in the event the debt secured by the mortgage is paid, the moment that it is so, the title of his subsequent ven-dee would at once attach. It is this circumstance which distinguishes this from the case of Stewart v. Fowler, 3 Ala. Rep. 629. And the case of Hodge v. Thompson, 9 Ala. Rep. 131, has no influence, because in that, and the decisions which induced it, the witness, at the time of the trial, had received the benefit of the sheriff’s sale, and would thus receive a double benefit in the event his trustee should recover in the suit. As early as the case of Jones v. Park, 1 Stewart, 419, it was the law of this court, that the vendor was a competent witness in a suit between persons both claiming by purchase from him, and the same doctrine is held in Frost v. Hall, 3 Wend. 386; Miller v. Little, 1 Yeates, 26, and Worcester v. Eaton, 11 Mass. 368. See also, as connected with the general subject, Leiper v. Gewen, 8 Ala. [206] Rep. 326; Pruitt v. Lowry, 1 Porter, 101; Holman v. Arnett, 4 Ib. 63. 2. The effect of the act of ’45 is, to render the mortgagor, when the defendant in execution, an incompetent witness between one claiming against the mortgage as an execution creditor, in one peculiar suit, of the trial of the right of property. [Yarborough v. Moss, 9 Ala. 390 ; Brumby v. Langdon & Co. 10 Ala. 747.] We are not aware of any evils which this statute was intended to cover, not included by its terms, as the decision in Hodge v. Thompson, 9 Ala. R. 131, shows the witness is incompetent in a suit against the purchaser at the sheriff’s sale. We think it clear, this statute does not affect the competency of this witness, under the circumstances in proof. 3. It is said, however, the subscribing witnesses should have been called to testify to the consideration of the deed. We shall presume this was done, as the bill of exceptions states the deed was proved to the jury. Conceding the subscribing witnesses were properly called to prove the execution of the deed, we are not aware • the fact of consideration must also be proved by them, or rather that the parties are not to be permitted to prove it by any one else. All the cases cited to this point of the case, by the defendant, only show, the subscribing witnesses to a deed must be produced, or their absence accounted for, before it can be proved by secondary evidence. We admit the general doctrine, but cannot see that it affects the question on the record. On the whole, we are clear the witness was competent, and his deposition should have been admitted. Judgment reversed and cause remanded.