MAYFIELD, J.
— The defendant, Snellgrove, who is the appellant, was sued by the plaintiff, John Evans, in an action of detinue for two horses. The defendant claimed title by virtue of a livery stable keeper’s lieu for the feed and keep of the horses, under section 2774 of the Code of 1896. The plaintiff, Evans, claimed under a subsequent mortgage alleged to have been execute*! to him by the owner of the horses, one P. H. Snow, dated September 19, 1903, due November 1, 1903, for the sum of |135, payable to the plaintiff, Evans, embracing the two horses sued for, and he insists that under the circumstances he was a bona fide purchaser for value of the horses. “The rule as to proof of bona fide purchase is that'the party pleading it must first make satisfactory proof of purchase and payment. This is affirmative defensive matter, in the nature of confession and avoidance, and the burden of proving it rests on him who asserts it. This done, he need go no further than prove he made such purchase and payment without notice. — Barton v. Barton, 75 Ala. 400. Neither will the mere recitals of the conveyance establish the consideration, which must be established by proof independent of said recital or- declaration.” — Snellgrove v. v. Evans, 145 Ala. 603, 40 South. 567.
The plaintiff attempted to make this proof.- on this trial by two distributees of the estate of the mortgagor, Snow, viz., Ella and Sarah Snow. Their evidence was taken by deposition, on interrogatories filed to them, *325and these interrogatories called for evidence of transactions between said Snow and the plaintiff, and for nothing else. The “defendant, when the interrogatories were filed, before entering upon the trial, and when the depositions were offered, objected to the competency of these witnesses, on the ground that P. H. Snow was dead, and that his estate and said witnesses were interested in the result of this suit, and their testimony (as called for) related to transactions or statements by the deceased.” When the depositions of these witnesses were read, the defendant again objected to separate parts of the answer of each — first, to the statement of Ella that “my brother (Snow) told him (Evans) that the mules were his; * * * he told Mrs. Evans to sell the mules, and he would get him a pair of horses in the place of them;” second, to the statement of Sarah Snow, “My brother told Mr. Evans to sell the mules, and that he would get him a pair of horses for them; * * * he sold the mules, and my brother failed to get the mares for him; * * * my brother compromised it by giving a mortgage on the two horses and a bnggv.” The exception reserved was, “To each separately, on the grounds of incompetency because of interest, as above stated (when the interrogatories were filed), and because illegal, irrelevant, and immaterial, and hearsay.” The court overruled the objections, each separately, and defendant separately excepted to the overruling of each objection. It was shown that these sisters of P. H. Snow were his heirs at law and distributees of his estate. These witnesses were not competent to testify to transactions between the deceased and plaintiff. — Code 1896, § 1794, and authorities there cited; Skinner v. Chapman, 78 Ala. 376; Dolan v. Dolan, 89 Ala. 256, 7 South. 425; Sublett v. Hodges, 88 Ala. 491, 7 South. 296.
*326The witness McCord testified that the mortgage was given in settlement of a former suit, and he dismissed the suit and paid the costs; that he had no connection with the defendant before the mortgage was given, and had no notice or knowledge that he (Snow) had anything against the team, or that they (the two horses) had ever been kept or fed at defendant’s stable. It was shown that McCord became the attorney of plaintiff in June, 1903, to collect this debt from P. H. Snow. Defendant testified that McCord came to his stable where the horses were being kept, and asked Mm (defendant) if he had any claim on the horses, and he told him he had a feed bill against them; that he had kept and fed the team for Snow, who had paid him nothing on the team’s feed and keep, and this was before the mortgage was given; that McCord came to his stable and asked where Snow was, saying he wanted to see him on business, and then asked defendant if he had anything against the horses, if Snow owed him anything on the team, and defendant replied, “Yes, sir; he does.”
Defendant further testified that he presented his claim for the feed of the team, fully itemized, to Wash-burn, Snow’s administrator, and demanded his pay; that the administrator failed to pay it for more than 10 days, and thereafter he advertised the horses for sale and sold them for the satisfaction of his debt; that they brought, one $1.00, and the other $95, and they were not worth over $100 each, and their use was not worth over $50 per annum. Washburn, the administrator of Snow, testified to substantially the same thing. The correctness of Snow’s account for keeping the horses, amounting to $189, was admitted by plaintiff to be correct.
The foregoing opinion was prepared by Justice Haralson, but fails to receive the concurrence of the court. It is, however, expressive of the views of Justice May-*327field, and is adopted and announced as his dissenting opinion in this case. The majority of the court are of the opinion that the distributees of the estate of the deceased mortgagor were competent witnesses to testify as to the transactions between the -decedent and the mortgagee, that they were not disqualified to testify as witnesses in this suit, and that therefore there was no error in allowing them so to do. All the Justices concur in the conclusion that there was no other reversible error in the record.
Affirmed.
Dowdell, C. j., and Simpson, Anderson, Sayre, and Evans, JJ., concur. Mayfield, J., dissents.