FOSTER, Justice.
This suit was begun at law by appellant in an action against J. R. Nettles for damages for cutting timber on a certain tract of land. Defendant paid the money into court, and suggested a claimant who, however, did not claim it, but E. O. Ford intervened as claimant. On motion of plaintiff, who is appellant here, the cause was removed to equity. Appellant then filed in the cause his bill in equity, and no issue is here made as to its sufficiency.
Appellant and Ford each claimed the timber under a common source, Fannie Ruffin. It is here argued as if the rights of the parties are determined by the validity and effect of their respective claims. We will so treat it. No point is made as to form or jurisdiction. The complainant claims the timber under a deed purporting to be signed by Fannie Ruffin March 21, 1939, recorded December 11, 1939. It purports to convey the timber in question to appellant, and provides that “this lease is for a term of five years from the date of this instrument.” It is not witnessed, but purports to be acknowledged before appellant, who was the grantee in it, describing himself as a notary public and with his seal attached.
Respondent Ford, by answer, claims that he was an innocent purchaser for value without notice of appellant’s claim; that Fannie Ruffin did not sign the deed; that it is void because not witnessed or acknowledged ; that it has been altered by changing the term expressed in it from two to five years; that it was procured by fraud in misrepresenting its contents and in taking advantage of an old ignorant negro woman. Ford set up title to the timber by deed from the heirs of Fannie Ruffin dated March 29, 1943, after her death, to Mary S. Barber, and a deed by Mary S. Barber to Ford dated December 1, 1943.
The decree of the court concluded that the deed to appellant was void because not witnessed nor acknowledged, but that since appellant paid $80.00 to or for Fannie Ruffin, awarded $80.00 to appellant, and the balance to Ford, after paying the costs out of the fund in court. Appellant is complainant below. Ford is not complaining.
The deed, not witnessed or acknowledged, does not pass the legal title. But we are in equity. The question is whether it conveys an equitable right which will be here enforced, and, if so, whether the record of it before the execution of the deed under which Ford claims is notice to him and his predecessor of its contents.
We will undertake to show that such a deed does have effect in equity, and its record is notice to subsequent purchasers.
A deed is not self-proving by reason of the record of it, unless it is acknowledged or proved according to law. Title 47, section 104, Code. But there is no statutory requirement that an instrument of any kind must be acknowledged or attested or proven to make it subject to the recording statute, providing it complies with the requirements of Title 47, section 95, Code. By virtue of that statute, an instrument shall be admitted to record if it purports to convey an interest in real estate, and if executed according to law. And if those requirements are met and it is recorded, such record operates as notice of its contents to those to whom the recording statute applies. Title 47, sections 95 and 102, Code.
A material inquiry here is whether the deed under which appellant claims the timber on the land in question is such as was authorized by Title 47, section 95, Code, to be recorded.
It is in form a warranty deed, containing all the essentials in its body necessary to pass a legal title to the timber on the land, to revert to the grantor after a term of five years. Title 47, section 49, Code. It is signed by Fannie Ruffin, the owner, who apparently wrote her own name. It is not witnessed nor acknowledged so as to comply with the requirements of Title 47, section 22, Code. It therefore is not “executed in accordance with law,” to pass the legal title. But section 95, supra, does not deal with the legal title alone, but with any interest in real estate as well as with the legal title. If the instrument purports to convey an interest in real estate and is properly executed for that purpose, it may be admitted to record, which carries notice under section 95, supra.
The language of the instrument would be sufficient to pass the legal title if properly executed for that purpose. But it shows on its face that it is not properly executed to do so. When such an instrument shows that it is not attested as required by law, it shows on its face that it does not convey the legal title. But when it- shows the signature of the -grantor sufficient to satisfy the statute of frauds, Title 20, section 3(5); Title 1, section 2, Code, which does not require the signature to be attested if the party can and does sign his own name, Bickley v. Keenan, 60 Ala. 293, and when, as thus executed, it purports to pass an interest in real estate, though only an equitable interest, it is within section 95, supra.
When a deed purports to convey the title to real estate, is signed by the grantor and delivered, but not witnessed or acknowledged as required by law (sections 22 and 24, Title 47, Code), though inoperative to pass the legal title, it is then in legal effect an agreement to execute an instrument passing the legal title. Lowery v. May, 213 Ala. 66(19), 104 So. 5; Branch v. Smith, 114 Ala. 463, 21 So. 423; Roney v. Moss, 74 Ala. 390; Goodlett v. Hansell, 66 Ala. 151. So -that the relation of vendor and purchaser is thereby created under circumstances when the purchaser has an equitable interest in the land. Bay Minette Land Co. v. Stapleton, 224 Ala. 175, 139 So. 342; Owens & Co. v. Blanks, 225 Ala. 566, 144 So. 35; Mitchell v. White, 244 Ala. 603, 14 So.2d 687. This is a perfect equity when the entire purchase price is paid, as here shown.
A deed therefore purporting to pass the legal title of land signed by the grantor and delivered to the grantee, but not sufficiently attested or acknowledged is “executed in accordance with law,” to purport to pass an interest in real estate to the grantee, and therefore may be admitted to record under section 95, supra, which carries notice, as provided in that statute, also in section 102, Title 47, Code.
The respondent .who claims under the heirs of the deceased grantor after the record of said deed is therefore chargeable with notice of it.
The claims next presented by Ford are by him sought to be proven by the testimony of Penton Ruffin, an heir of Fannie Ruffin, and grantor in the deed under which Ford claims. There was objection under Title 7, section 433, Code. We will discuss that claim.
The principle has been established and adhered to by a long line of our cases “that as to all such testimony the living party to the original transaction is not a competent witness
im favor ■of those who claim under him as against either
the deceased party * * * or against those who claim
in privity with s%ich
persons,
whether by descent or purchase.”
Jernigan v. Gibbs, 206 Ala. 93, 89 So. 196, 197; Key v. Jones, 52 Ala. 238; Boykin v. Smith, 65 Ala. 294; Barnes v. White, 195 Ala. 588, 71 So. 114; Guin v. Guin, 196 Ala. 221, 72 So. 74; Federal Land Bank v. Curington, 233 Ala. 263, 171 So. 361.
The following statement of the principle by Brickell, C. J., in Boykin v. Smith, supra, has been often cited and quoted:
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FOSTER, Justice.
This suit was begun at law by appellant in an action against J. R. Nettles for damages for cutting timber on a certain tract of land. Defendant paid the money into court, and suggested a claimant who, however, did not claim it, but E. O. Ford intervened as claimant. On motion of plaintiff, who is appellant here, the cause was removed to equity. Appellant then filed in the cause his bill in equity, and no issue is here made as to its sufficiency.
Appellant and Ford each claimed the timber under a common source, Fannie Ruffin. It is here argued as if the rights of the parties are determined by the validity and effect of their respective claims. We will so treat it. No point is made as to form or jurisdiction. The complainant claims the timber under a deed purporting to be signed by Fannie Ruffin March 21, 1939, recorded December 11, 1939. It purports to convey the timber in question to appellant, and provides that “this lease is for a term of five years from the date of this instrument.” It is not witnessed, but purports to be acknowledged before appellant, who was the grantee in it, describing himself as a notary public and with his seal attached.
Respondent Ford, by answer, claims that he was an innocent purchaser for value without notice of appellant’s claim; that Fannie Ruffin did not sign the deed; that it is void because not witnessed or acknowledged ; that it has been altered by changing the term expressed in it from two to five years; that it was procured by fraud in misrepresenting its contents and in taking advantage of an old ignorant negro woman. Ford set up title to the timber by deed from the heirs of Fannie Ruffin dated March 29, 1943, after her death, to Mary S. Barber, and a deed by Mary S. Barber to Ford dated December 1, 1943.
The decree of the court concluded that the deed to appellant was void because not witnessed nor acknowledged, but that since appellant paid $80.00 to or for Fannie Ruffin, awarded $80.00 to appellant, and the balance to Ford, after paying the costs out of the fund in court. Appellant is complainant below. Ford is not complaining.
The deed, not witnessed or acknowledged, does not pass the legal title. But we are in equity. The question is whether it conveys an equitable right which will be here enforced, and, if so, whether the record of it before the execution of the deed under which Ford claims is notice to him and his predecessor of its contents.
We will undertake to show that such a deed does have effect in equity, and its record is notice to subsequent purchasers.
A deed is not self-proving by reason of the record of it, unless it is acknowledged or proved according to law. Title 47, section 104, Code. But there is no statutory requirement that an instrument of any kind must be acknowledged or attested or proven to make it subject to the recording statute, providing it complies with the requirements of Title 47, section 95, Code. By virtue of that statute, an instrument shall be admitted to record if it purports to convey an interest in real estate, and if executed according to law. And if those requirements are met and it is recorded, such record operates as notice of its contents to those to whom the recording statute applies. Title 47, sections 95 and 102, Code.
A material inquiry here is whether the deed under which appellant claims the timber on the land in question is such as was authorized by Title 47, section 95, Code, to be recorded.
It is in form a warranty deed, containing all the essentials in its body necessary to pass a legal title to the timber on the land, to revert to the grantor after a term of five years. Title 47, section 49, Code. It is signed by Fannie Ruffin, the owner, who apparently wrote her own name. It is not witnessed nor acknowledged so as to comply with the requirements of Title 47, section 22, Code. It therefore is not “executed in accordance with law,” to pass the legal title. But section 95, supra, does not deal with the legal title alone, but with any interest in real estate as well as with the legal title. If the instrument purports to convey an interest in real estate and is properly executed for that purpose, it may be admitted to record, which carries notice under section 95, supra.
The language of the instrument would be sufficient to pass the legal title if properly executed for that purpose. But it shows on its face that it is not properly executed to do so. When such an instrument shows that it is not attested as required by law, it shows on its face that it does not convey the legal title. But when it- shows the signature of the -grantor sufficient to satisfy the statute of frauds, Title 20, section 3(5); Title 1, section 2, Code, which does not require the signature to be attested if the party can and does sign his own name, Bickley v. Keenan, 60 Ala. 293, and when, as thus executed, it purports to pass an interest in real estate, though only an equitable interest, it is within section 95, supra.
When a deed purports to convey the title to real estate, is signed by the grantor and delivered, but not witnessed or acknowledged as required by law (sections 22 and 24, Title 47, Code), though inoperative to pass the legal title, it is then in legal effect an agreement to execute an instrument passing the legal title. Lowery v. May, 213 Ala. 66(19), 104 So. 5; Branch v. Smith, 114 Ala. 463, 21 So. 423; Roney v. Moss, 74 Ala. 390; Goodlett v. Hansell, 66 Ala. 151. So -that the relation of vendor and purchaser is thereby created under circumstances when the purchaser has an equitable interest in the land. Bay Minette Land Co. v. Stapleton, 224 Ala. 175, 139 So. 342; Owens & Co. v. Blanks, 225 Ala. 566, 144 So. 35; Mitchell v. White, 244 Ala. 603, 14 So.2d 687. This is a perfect equity when the entire purchase price is paid, as here shown.
A deed therefore purporting to pass the legal title of land signed by the grantor and delivered to the grantee, but not sufficiently attested or acknowledged is “executed in accordance with law,” to purport to pass an interest in real estate to the grantee, and therefore may be admitted to record under section 95, supra, which carries notice, as provided in that statute, also in section 102, Title 47, Code.
The respondent .who claims under the heirs of the deceased grantor after the record of said deed is therefore chargeable with notice of it.
The claims next presented by Ford are by him sought to be proven by the testimony of Penton Ruffin, an heir of Fannie Ruffin, and grantor in the deed under which Ford claims. There was objection under Title 7, section 433, Code. We will discuss that claim.
The principle has been established and adhered to by a long line of our cases “that as to all such testimony the living party to the original transaction is not a competent witness
im favor ■of those who claim under him as against either
the deceased party * * * or against those who claim
in privity with s%ich
persons,
whether by descent or purchase.”
Jernigan v. Gibbs, 206 Ala. 93, 89 So. 196, 197; Key v. Jones, 52 Ala. 238; Boykin v. Smith, 65 Ala. 294; Barnes v. White, 195 Ala. 588, 71 So. 114; Guin v. Guin, 196 Ala. 221, 72 So. 74; Federal Land Bank v. Curington, 233 Ala. 263, 171 So. 361.
The following statement of the principle by Brickell, C. J., in Boykin v. Smith, supra, has been often cited and quoted:
“True, the witness is not a nominal party to this suit; but the defendant is his grantee, claiming to have derived from him the title which was vested in his father while living. The appellant was claiming to recover an undivided one-eleventh part of the lands, as having descended to him from his father. If the suit was between the appel
lant and Christopher Boykin, the latter would be within the words of the exception in the statute prohibiting a party from testifying ‘to transactions with, or statements by a deceased person, whose estate is interested in the result of the suit.’ — Code of 1875, sec. 3058. The purpose of the evidence, and the only result to be reached by it, would be to take away the legal rights of the appellant as heir at law. The policy of the exception is the exclusion of the parties in interest, from testifying to transactions with, or statements by a deceased person, when the purpose of the evidence is to diminish the
rights of the
deceased,
or of those claiming in succession to him.
* * * If death has sealed the lips of one party, the law intends, as
to
this species of evidence, to seal the lips of the living. A conveyance with or without warranty, or a transfer of the subject-matter of the suit to another, cannot enable the living party to testify; or the policy of the exception could, at the pleasure of the parties, be defeated.” (Italics ours.)
We think it clear that when rights of an heir are at stake or those of his purchaser, and those rights are dependent upon the inheritance, as it existed at the time of the death of decedent, such inheritance (or the estate of deceased) is interested in the suit.
But the question arises of whether the statute bars a witness who is an heir of the estate and proposes to testify in respect to such transaction in the interest of his purchaser, who has succeeded to the interest of the estate.
In the case of McDonald v. Harris, 131 Ala. 359, 31 So. 548, the Court overruled Austin v. Bean, 101 Ala. 133, 137, 16 So. 41, which had held that the statute (section 433, supra) is for the protection of the estate of decedent and those claiming under him, and further that it does not contemplate that the adversary of the estate may object to the competency of a witness called by the representative of the estate to prove a transaction with decedent, and in overruling it held that those interested in the estate could not detail transactions by their deceased ancestor, since the plaintiff’s mouth is closed in that respect.
In Adler v. Pin, 80 Ala. 351, it is said the rule of exclusion extends to both the adversary parties. The same principle was applied in Watson v. Appleton, 183 Ala. 514, 62 So. 765, and Qualls v. Monroe County Bank, 229 Ala. 315(3), 156 So. 846.
In some cases, where that question was not involved, it was sometimes said that the statute is for the protection of the estate of decedent, implying it is thought that it is not to protect the living party. But it cannot be used by the representative of the estate of decedent as a club against which the living cannot defend. Since he cannot testify against the estate’s representative, the latter should not and cannot testify against the living party. “A party to a contract made with a decedent is not competent to testify thereto as a witness for persons claiming under him as against the heirs of decedent.” Barnes v. White, supra. And this protects purchasers under decedent as well as heirs. Jernigan v. Gibbs, supra. The evidence cannot by the terms of statute be used against a party to whom the interest of the witness is opposed, unless called to testify by the one to whom such interest is opposed. Section 433, Title 7, Code. The statute does not say that it cannot be used against the estate of the deceased, but against a party whose interest is opposed to that of the witness. Reference was made to that principle on the basis of those cases in Pfingstl v. Solomon, 240 Ala. 58, 197 So. 12.
It is also observed that section 433, supra, provides that “no person who is an incompetent witness under this section shall make himself competent by transferring his interest to another.” But the competency
oí the
witness is dependent upon the nature of the suit and whether the estate of deceased is interested. If the estate is not interested, there is no incompetency under the statute. If the estate is interested, the witness is incompetent if he either has a pecuniary interest in the result of the suit at the time of trial, or if his status is such that he would be so interested if he had not transferred it. Having such interest, and the estate as it existed at the time of the death of Fannie Ruffin being interested, he is incompetent to testify to any transaction with or statement by deceased, “unless he is called to testify thereto by the party to whom such interest is opposed.”
This principle makes Penton Ruffin an incompetent witness for respondents as to a transaction with or statement by deceased. He was one of her heirs at law who inherited her landed interest. After her death he joined in a warranty deed of this land under which respondent Ford claims. The question at issue in this suit relates to the value of the inheritance at the time of the death of decedent in the hands of a successor to such interest, which makes her estate interested within the meaning of section 433, supra. It is said in Boykin v. Smith, supra, 65 Ala. 294, at page 299, that a conveyance with or without warranty or a transfer of the subject matter to another cannot enable the living party to testify.
In view of this status of the record, the Court is of the opinion that it would be best to remand the case for another trial in accordance with this opinion rather than to render a decree now. The decree of the circuit court is therefore reversed and the cause remanded for another trial.
Reversed and remanded.
LIVINGSTON, LAWSON, SIMPSON .and STAKELY, JJ., concur.
BROWN, J., dissents.