Jernigan v. Gibbs , 206 Ala. 93 ( 1921 )

Counsel for appellant conceive that the principle of exclusion which we have applied to the testimony of her husband, with respect to his alleged payment of the mortgage debt, is misapplied, for the reason that that alleged transaction with Mrs. Gibbs' now deceased agent occurred long after appellant's husband had conveyed his interest in the land to her. Appellant's contention is, in short, that by that conveyance of the land her husband freed himself from the testimonial disqualification of an interested party as to any subsequent transactions or statements, which would otherwise have fallen under the ban of the statute. Code, § 4007.

This contention would be sound enough, if his interest in the land had been the only interest affecting his testimonial capacity; but it overlooks the fact that the husband remained liable for the mortgage debt, as to which he was the sole obligor, and in the payment of which he was acting for himself. He therefore comes within the rule of disqualification laid down by the decisions; and, since he would be disqualified to testify to the transaction in question if he were a present party, he is equally disqualified to testify in favor of one who holds, in privity with himself, the subject-matter affected by that transaction.

For this reason, we adhere to our ruling, and the application for rehearing must be overruled.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.