Coleman v. State

79 Ala. 49

Opinion

SOMERYILLE, J.'

The admission of the mortgage in evidence was error. It purported to be attested by two subscribing witnesses, and its execution should have been proved by at least one of these witnesses, or else the witnesses should ail have been shown to be dead, insane, out of the jurisdiction of the court, or that they could not be found after diligent inquiry ; or the case should otherwise have been brought within some established exception to the rule, in either of which contingencies the instrument could be proved by other evidence. And the admission of the grantor in the mortgage, not made solemnly in judioio, did not dispense with the requisite proof. Askew v. Steiner, 66 Ala. 218; 1 Greenl. Ev., § 572.

The court properly excluded the written instrument purporting to be a deed of gift to Yinia Coleman, which was .sought to be proved by the testimony of the donee. The donee was one of the three subscribing witnesses who attested this paper, and being incapacitated to be such a witness, by reason of being a beneficiary under the instrument, she was incompetent to prove it; and no other one of the attesting witnesses was offered for this purpose. No party to an instrument is a competent attesting witness to it, unless made so by statute ; and this rule is not affected by the alteration of the former law made by section 3058 of the Code of 1876, which rendered parties and interested persons competent witnesses in certain cases.

We have examined the other rulings of the court, and believe them to be free from error. We do not understand that any objection is urged to them in the brief of appellant’s counsel,

Reversed and remanded.