Garner v. Bridges

38 Ala. 276

Opinion

R. W. WALKER, J.

As the vendor was examined as a witness for his vendee, it is plain that he must have known of the existence of the suit. But it is not shown that he was formally and seasonably informed by the vendee of the pendency of the suit, and required to defend it. To say the least, it admits of question, whether the vendor’» mere .knowledge of the existence of tire suit' will suffice to make: the judgment evidence ■ against, him, in favor of his vendee, of the facts on which it is founded. — 3 Phill. Ev. (C. & H.'s Notes, 2d ed.) 816-17, 982-4; 1 Greenl. Ev. §§ 394, 397, (note 2,) 404 ; 2 Smith’s Leading Cases, 684. However thatmay be, it isi-certain that, unless.rentdered otherwise by statute,; the'-vendor in this caséis a-competent witness for hisvvenclee, '.because his interest is equally' balanced!. — Zackowski v. Jones, 20 Ala. 189 ; Holman v. Arnett, 4 Porter, 63 ; 2 Phill. Ev. (C. & H.’s Notes, 2d ed.) 120-2, 126-9; 3 ib. 1543-4; 1 Greenl. Ev. §§ 420, 398, note (3.) It is equally.-serta-i-a, that the Code has not , made him incompetent. Section 2302 was not designed to increase, but to- diminish the number of incompetent ^witnesses. It simply destroys the common-law objection on the ground of interest, except in cases where the vevdict and judgment would be evidence for the witness in .another suit. The witness, to be- incompetent, must still Kbe interested ; and? he is not interested, in the legal sense ;.(pf-fhat term, even though the verdict and judgment would ' be- evidence for him in another suit* if he-is equally interested on both sides of the. cause. — See Rupert v. Elston, 35 Ala. 86.

2. The- law of Mississippi was admissible in evidence, for the purpose of repelling the idea of fraud in the sale.

3. The declarations of John L. Bridges were properly excluded. They were made three months before the sale to the plaintiff, when the latter was not present, and were not explanatory of the vendor’s possession or title.

Judgment affirmed.