Hendricks v. Kelly , 64 Ala. 388 ( 1879 )

BRICKELL, C. J.

1. The objection to the competency of the appellee, and of his vendor, Woodward, as witnesses to prove the declarations and statements of O’Neal, and of Beavis, who were dead, was properly overruled. The 0 ode of 1876 (§ 3058) renders all persons, without regard to interest, or their relation to the record, competent witnesses in civil causes. There is an exclusion of particular evidence, when proceeding from a party, or his beneficiary; that is, evidence of statements by, or transactions with a deceased person, whose estate is interested in the result of the suit; or of such transactions or statements, when the deceased person who made them was at the time acting in a fiduciary or representative relation to the party against whom the evidence is sought to be introduced. At common law, the presumption was in favor of the competency of the witnesses — of their freedom from a disqualifying interest; and the party averring incompetency, was bound to show it. The presumption must now prevail, when the policy of the law is to remove all artificial restraints upon the competency of witnesses, and to open wide the door for the introduction of relevant and legal evidence from any and all sources. It is certain that, when Beavis and O’Neal made the statements and representations now attributed to them, no relation whatever of any kind existed between them and the appellant: they were strangers to each other, and the appellant was without interest of any kind in the premises, the subject to which the statements and representations referred. If any interest in the result of the suit remains to them — if the estate of either can be enlarged or diminished by the decree which may be rendered— it is not shown, and can not be presumed from any fact found in the record.

2. Bepresentations, or admissions, which have been acted on' by others, especially when made in answer to inquiries for information on which to base action, and when the purpose of the inquiry is made known, become conclusive, and operate as an estoppel on the party making them, in all- cases between him and the person whose conduct he has influenced, if loss must ensue from a denial of their truth. — 1 Brick. Dig. 296, §§ 10, et seq. The representations or admissions may have been made innocently, and inadvertently; but they will become conclusive, if the party to whom they are made is induced to act upon them, and must sustain injury because of such action, unless they are allowed all the operation they could have if true in point of fact, and made deliberately. The representations of Beavis, the trustee, and of O’Neal, the creditor and sole beneficiary in the deed of trust, that Woodward had the right to sell, and could make title to the premises, and that the balance of tbe debt secured by the deed could be realized from other property, were made to the. appellee while negotiating his purchase, and induced him to conclude the purchase, parting with property of value, though it may not have been the full equivalent of the value of the premises, and to accept the conveyance from Woodward. It would operate as a fraud upon the appellee, if they, or whoever claims under them with notice, were now permitted to assert their untruth.

3-4 The possession of the appellee, at the time of her purchase, ought to have put the appellant on the inquiry, as to the nature of his possession, and the character of the title claimed by him. If she made no inquiry, she was grossly negligent, and is charged with constructive notice of his paramount equity. The evidence is, also, sufficient to trace to her actual notice; for, at the public sale, at which she became a purchaser, notice of it was given, and the sale forbidden. Claiming, with notice, under parties who are estopped, the estoppel not being fraudulent, binds and concludes ber. Besting in parol, at law the estoppel was not available to the appellee; but in a court of equity it has full operation. McPherson v. Waters, 16 Ala. 714; Gimon v. Davis, 36 Ala. 589; Kelly v. Hendricks, 57 Ala. 193.

The decree is affirmed.