62 Ala. 566 | Ala. | 1878
The original statute removing the common law disability of parties as witnesses, contained an exception of suits or proceedings by or against an executor or administrator, in which neither party, unless called by his adversary, was allowed to testify as to any statement by, or
The purpose of the present suit, is the vacation of a sale made by prior mortgagees, on the ground that the mortgage debt had been paid, and the foreclosure of the junior mortgage to the appellant. The mortgagors, the senior mortgagees, and the purchaser from them, are defendants to the bill, and the real controversy was between th.e purchaser and the senior mortgagees on the one hand, and the appellant on the other. The mortgagors did not engage in the litigation, but submitted to decrees pro confesso. If the exception can be said to embrace a suit of this character, it will restore, as to deceased persons, the common law rule of excluding witnesses, for or against whom the judgment would be evidence in another suit. An interest in the judgment or decree as evidence, is not the interest in the result of the suit, which authorizes the exclusion of a party as a witness. The result of the suit must diminish or enlarge the estate of the deceased person, before the disqualifying interest can be said to exist.
Nor does the evidence to which objection is made, consist of transactions with, or statements by, the deceased mortgagor and contractor. No statement made by him, no transaction in which he was the immediate, active agent, was proved. Transactions with a partnership of which he was a member, were shown, but for aught that appears, the surviving partner was the active agent in all these transactions,, and fully capable of explaining, or giving contradictory evidence in reference to them. At common law the presumption was of the competency of witnesses, and the burthen of'
The gravamen of the bill is that the debt secured by the senior mortgage, had been paid before the mortgagees made the sale which it is prayed shall be vacated. The case as now presented, does not require us to consider whether, if this be true, it affects the title of the purchaser, or whether the bill, in any aspect, contains equity. These are questions which do not seem to have been discussed before, or passed upon by the Chancellor. The controversy seems to have resolved itself into one oí fact — the prior payment of the mortgage debt. The burden of proving payment devolves on the party pleading it. — 2 Green. Ev. 516. After an examination of the evidence, we have reached the conclusion attained by the Chancellor, that the payment of the debt is not proved. The general rule which is insisted on by the appellant, is conceded. A factor or commission merchant, from time to time making advances, receiving payments, and blending debits and credits together, in a common account, can claim the balance only as an existing debt, and the parts of the account have no longer a separate existence. The credits are by him applied to the debts in the order of time in which they accrue. The rule is not inflexible, and if a different application of the payments is expressly shown, or is to be inferred from the course of dealing between the parties, then the rule does not apply. — Harrison v. Johnston, 27 Ala. 445. A different application is expressly shown in this ease. Whenever there was a fund to the credit of the mortgagors, which could have been applied to the mortgage debt, it was drawn by them from the mortgagees and applied to their own uses. The mortgage debt may have entered into the accounts rendered the mortgagors, but no credit to which they were entitled, was applied to its payment. •
The decree is affirmed.
