Sims v. Killen , 12 Ala. 497 ( 1847 )

GOLDTHWAITE, J.

The rule declared in Walton v. Shelly, 1 Term R. 296, that a party giving a security is not a competent witness to afterwards impeach it, was overturned in England, upon great consideration, in the subsequent case of Jordaine v. Lashbrook, 7 Term, 601, and has never been considered the proper rule in this court, though in some of the States, and in the supreme court of the United States, it has been acted upon with reference to promissory notes and bills of exchange. The American cases are numerous which decide that the grantor in a deed is a competent witness to impeach it if not interested. [Hudson v. Hurlburt, 15 Pick. 433; Jackson v. Frost, 6 John. 135; Simmons v. Parsons, 1 Bailey, 62; 5 N. H. 181; Wright v. Nichols, 3 Bibb, 298; 12 N. H. 524.] Although there are some decisions adverse to these, and founded on Walton v. Shelly, the weight of authority is, that the witness is competent. The decision of this court in Johnson v. Cunningham, 1 Ala. R. 249, has nothing to do with the question here presented, and what is said there refers itself to the case of a grantor introduced to sustain the title.

Judgment reversed and cause remanded.