72 So. 74 | Ala. | 1916
The “time of the purchase,” however, within the operation of this rule, can only mean the time of the acquisition of the title, whether legal or equitable. Any other application of the rule would make of it a senseless technicality, and the language of the authorities does not so require.
In the present case, complainant paid the money before the purchase by her husband, for up to the time he receives the deed there had been no purchase, but ony a verbal agreement, abortive in operation, and void in law.
A trust therefore resulted in favor of complainant when the real and only purchase was made on November 25, 1907; the evidence on this point being full, clear, and convincing. — Carter v. Challen, 83 Ala. 135. 3 South. 313.
Whether by recording his judgment in September, 1913. or by placing an execution thereon in the hands of the sheriff in March, 1914, respondent Dorroh acquired a judgment lien prior to any notice to him of complainant’s equity, and that equity cannot be asserted to defeat his judgment.—Preston v. McMillan, 58 Ala. 84, 94; Carter v. Challen, 83 Ala. 135, 30 South. 313; Marshall v. Lister, 195 Ala. 591, 71 South. 411.
This statute has been liberally construed as incluling in the class of incompetent witnesses, and also in the class of protected adversaries, those who are within the spirit and policy of the statute, though not strictly within its terms.—White v. Thompson, 123 Ala. 610, 26 South. 648; Louis v. Easton, 50 Ala. 470; Boykin v. Smith, 65 Ala. 294; Hodges v. Denny, 86 Ala. 228, 5 South. 492; Moore v. Walker, 124 Ala. 199, 26 South. 984.
So, this witness being clearly incompetent to so testify as against Mrs. Hodge, the original mortgagee, he must be held equally incompetent as against her transferee and successor in interest, Dorroh.
It results that, on the legal and undisputed evidence before the chancellor, he properly dismissed the original bill, and granted relief to the respondent, Dorroh, under his cross-bill.
Affirmed.