O'Neal v. Lovett

SOMERVILLE, J. (1, 2) The chancellor excluded all the testimony by interested parties as to declarations by James O’Neal, one of the vendors, and by J. A. B. Lovett, vendee, both of whom were deceased and their estate interested in the result of the suit. Where evidence inherently illegal is excluded on motion, it is of no consequence that the motion did not point out the true ground of objection. — Moseley v. Mastin, 37 Ala. 216. This left no testimony before the court tending to show the existence or amount of a vendor’s lien, except that of one McKenzie, who stated merely that he had at one time heard Lovett say that he owed a balance on the lot he bought from the O’Neals, but did not say how much. [630] (3) This testimony alone could not support a finding for any • particular amount, and hence complainants failed to support their claim as to a vendor’s lien; the burden being upon" them to • overcome the prima facie effect of the recital of payment in the • deed. Complainants’ counsel, however, insist that the chancellor .erred with respect to the exclusion of the testimony of Mary Lovett, one of the respondents. She testified: “The terms of the trade between my father and Miss Hettie O’Neal were as -follows: My father sold her the two lots for $700, $200 of which amount she was to pay in cash, and she was given credit for $200 which my father owed Mr. O’Neal, the father of Miss Hettie O’Neal, on this same property.” Complainants objected to the interrogatory itself, and moved to exclude all the words of the answer “except in so far as they • show a balance was due on this same property and unpaid.” One ground of the motion to exclude was, “second, because it is her . opinion or conclusion that the money was owing from her father -to Hettie O’Neal’s father.” (4) If complainants desired to leave in evidence any particular part of this testimony, a motion should have been so framed as to point out to the chancellor exactly what words were sought to be excluded. Testimony cannot be excluded on one party’s motion, with a saving clause which preserves for the moment some supposedly beneficial effect of such testimony. Either it must be excluded, ■ or it must remain in evidence. As this motion was framed — and ■ especially in view of the specific objection to the witness’ conclusion that her father owed a balance of $200 on the purchase price - — the movants cannot complain that the chancellor excluded the entire testimony of this witness. It may be doubted also whether a subordinate phrase, incomplete in itself, and forming part of a complete statement, could be properly separated from its context, by a motion to exclude - the context only. — See Spitzer v. Nassau, etc., Co., 20 Misc. Rep. 327, 45 N. Y. Supp. 682. This, however, we need not now deter- ■ mine. (5) It is conceded by appellees that the chancellor erred in . allowing an attorney’s fee for foreclosure' of the mortgage by cross-bill; the mortgage providing for such a fee only for forerdosure under the power. — Bynum v. Frederick, 81 Ala. 489, [631] 8 South. 198. The decree will therefore be corrected in this re-, spect, and recovery of such a fee by respondents will be denied. We find no error in the decree of the chancery court as noted.. It will therefore be corrected, and, as corrected, will be affirmed. The costs of this appeal will be apportioned equally between the; parties. Corrected and affirmed. Anderson, C. J., and Mayfield and Thomas, JJ., concur..