124 Ala. 199 | Ala. | 1899
— If the plaintiff Avas incompetent fo testify that her mother gave her the piano, and all her evidence which was admitted against the objections of defendants, as tending to show the gift, had been excluded, it Avill be admitted she Avas not entitled to recover. It may be, that Avith all that evidence in, she Avas not entitled to a verdict, but this we need not and do not decide.
If the piano Avas originally purchased by Mrs. McBee and paid for by her out of her money, and Avas not bought and paid for by Mr. McBee Avith his money, and Mrs. McBee made no Adalid gift of it to the plaintiff, and the title remained in her until the time of her death intestate, and there Avas no administration on her estate,
The Code (section 1794) provides, that “no person having a pecuniary interest in the result of the suit or proceeding shall be alloAved to testify against the party to whom his interest is opposed, as to any transaction Avith, or statement, by the deceased person Avhose estate is interested in the result of the suit or proceeding.” It is true, the personal representative of the mother is not a party to this suit, but the husband and daughter, Pearl, the successors in interest of the mother are the virtual defendants. The force of the statute cannot be avoided by bringing the suit against one avIio has no personal interest in the property as here, although he may have temporary possession of it, as a mere naked bailee. Stuckey v. Bellah, 41 Ala. 700; Goodlett v. Kelly, 74 Ala. 218; Miller v. Cameron, 84 Ala. 63. “Mutuality in its operation is the policy and purpose of the statute. Its provisions exclude the living from testifying to any transaction betAveen himself and the dead, in all cases where the effect of the evidence is to diminish the rights of the deceased, or those claiming under him, and Avhere
To maintain trover, the plaintiff must have property ' in himself, and a right to the possession at the time of the conversion, and must recover on the strength of his own title. — Corbitt v. Reynolds, 68 Ala. 378; Booker v. Jones, 55 Ala. 266; 26 Am. & Eng. Ency. Law, 744.
It is very clear, the plaintiff was incompetent to testify to the transaction of the gift by her deceased mother to her, and that Avithout this evidence, she can never recover. It is unnecessary therefore, to notice other assignments of error.
Reversed and remanded.