Fort's Adm'r v. Davis , 67 Ala. 481 ( 1880 )

STONE, J.

— The testimony is very full, and unquestionably competent, which proves that after the death of Fort, the vendor, Davis, the purchaser, paid to Mrs. Davis and her brother, W. W. Fort, the balance of the purchase-money due on the land. Such payment was in no sense a transaction with the decedent; and under the severest construction we could give to § 3058 of the Code of 1876, both Mrs. Davis and her brother were competent witnesses to prove such payment. The only question, then, on which any contest can arise, is, whether or not the right and ownership of the notes was transferred to his said daughter and son. The testimony of Camillus Fort, claimed to have a bearing on this question, was clearly illegal. Its tendency was to prove that the estate of the older Fort was still entitled to the notes, and thus to create, or increase a fund, in which he would share as a distributee. He is a party to the suit; his testimony related to a statement by the intestate, whose estate was interested in the result of the suit; and if the administrator succeeded in making his defense good, his, the witness’ share, would be increased. The question falls directly within § 3058 of the Code.

The special chancellor ruled out all the testimony, offered on either side, of the children of the elder Fort, detailing transactions with, and statements by, intestate. They are all parties to this suit, and he ruled that they fell within the exception expressed in § 3058 of the Code. He granted relief to complainant, however, on the other testimony in the cause. Giving the testimony in this record its proper weight, and treating the Chancellor’s finding as prima fade correct, we can not see clearly that his judgment is wrong. — Rather v. Young, 56 Ala. 94; Lamar v. Brown, Ib. 157; Collins v. Loyal, Ib. 403.

We do not think there is any substantial variance between the allegations and proof. — Bogan v. Daughdrill, 51 Ala. 312.

Affirmed.