[Manegold, Admx. v. Massachusetts Life Insurance Co.] The rule of exclusion established by the statute has been held to embrace many who are beneficially, though not nominal, parties to the suits. -Keel v. Larkin, 72 Ala. 504; Stallings v. Hinson, 49 Ala. 92. R. L. HARMON, contra.-P. C. Watts was a competent witness under section 1794 of the Code. He was not a party to the suit, nor is he shown to have had any pecuniary interest in the result of the suit or proceedings, opposed to the interest of the plaintiff. His pecuniary interest was contingent upon the application being accepted by the company, and, hence, is identical with the interest of the plaintiff, rather than opposed to her interest. He did not act in a representative or fiduciary relation to deceased, against whose estate it is claimed that his testimony is sought to be introduced. The burden of proof was upon plaintiff to show that the witness Watts came within the prohibition or exclusion of the statute. Huckabee v. Abbott, 87 Ala. 409; Ala. Gold Life Ins. Co. v. Sledge, 62 Ala. 556; Espalla v. Richards, 94 Ala. 159; Cromwell v. Horton, 94 Ala. 647. MCCLELLAN, C. J.-It seems quite clear to us that the witness Watts was not a "person having a pecuniary interest in the result of the suit" prosecuted by Mrs. Manegold against the Insurance Company. No possible judgment in that cause could subject his estate to liability or establish a status under which his estate could be subjected or any pecuniary right of his be affected; nor, on the other hand, could any result possible of attainment in that suit involve pecuniary gain to him within either the letter or spirit of the statute. Code, § 1794. It may possibly be that if the Insurance Company had lost this case it would have discharged Watts as its agent, and it may possibly be that such action on the part of the company would have entailed pecuniary loss upon Watts; but it is entirely conjectural whether the company would have discharged Watts, and, if it had, it is further pure conjecture whether he would have suffered pecuniarily thereby. It is, of course, not such uncertain, speculative and remote pe [Manegold, Admx. v. Massachusetts Life insurance Co.] * cuniary interests as those just referred to that will disqualify a witness to testify as to transactions with or statements by a deceased person whose estate is interested in the result of the suit, but to disqualify the interest must be pecuniary and it must be involved in the suit so as to be affected by the judgment to be rendered therein. "A case cannot arise for the application of the exception unless it involves a direct, immediate conflict of interest between the dead and the living."-Ala. Gold Life Ins. Co. v. Sledge, 62 Ala. 566; Howle v. Edwards, 97 Ala. 649. "A mere suggestion of a remote and contingent interest, of the existence of which there is no evidence, does not warrant the exclusion of a statement by one not a party to the suit." Cromwell v. Horton, 94 Ala. 647. So far as Watts being shown to have pecuniary interest in the result of this suit opposed to the interest of the administratrix against whom he was called as a witness, it would seem that if he can be said to have had any such interest it was in line with the interests of the plaintiff and opposed to those of the party calling him, since if, as plaintiff asserts, he made a contract of insurance which was binding on defendant he was entitled to a certain share of the proceeds of the note given by Manegold for the amount of the first premium, and if defendant succeeded in the action this would be lost to him. But we do not rest our conclusion that he was competent to testify as to what passed between him and Manegold on the suggestion just made. He was clearly competent on the broad ground that he was not shown to have any pecuniary interest in the result of the suit. There is no disqualification of any witness by the statute because of any relation he may sustain to the parties to the action so long as his relations are not such as render him a beneficial party though not named on the record. The statute does not proceed on the idea that because A was the agent of B in a transaction with C, since deceased, A in a suit involving the interests of B and C's estate growing out of that transaction would presume upon the seal death had impressed upon the lips of C, to testify falsely for B; but it does proceed [Manegold, Admx. v. Massachusetts Life Insurance Co.] upon the theory that there is danger of false swearing on the part of A in the case supposed when he has a pecuniary interest opposed to C's estate in the result of the suit, a danger which arises from the two facts that C cannot contradict him and that the situation offers a reward for his perjury. And so long as A has no such incentive to false swearing as is supplied by a pecuniary interest to be subserved by it in the particular suit, he is a competent witness against C's estate as to any transaction with or statement by C in his lifetime whether in that matter he was the agent of the party calling him, and, if so, whether such party be an individual or a corporation. Watts-and Smith, too, for that matter-being a competent witness to prove what occurred between him as agent for defendant and Manegold with reference to the rejection of the latter's application for insurance, it was regularly and properly and beyond controversy proved in the case that if any contract of insurance at any time existed between Manegold and defendant, it had been absolutely and completely annulled and avoided prior to the death of Manegold; and the city court was right in giving the affirmative charge, with hypothesis, for the defendant. It is plain also that had the demurrer to the second count of the complaint been overruled, instead of being sustained, and that count had remained in the case, the defendant on all the facts of the case would still have been entitled to the affirmative charge; so that whether the ruling on the demurrer to that count was correct or not is immaterial. Affirmed. [Sheffield City Co. et al. v. Tradesmans National Bank.] Sheffield City Co. et al. v. Tradesmans National Bank. Bill in Equity to enforce Lien for Taxes. 1. Lien for taxes; exists as to purchaser for the particular year for which the taxes are assessed. -The lien conferred by statute upon the purchaser at a tax sale, which is ineffectual to pass the title to the purchaser, (Code, § 4078), exists only for the taxes of the year for which the property was assessed. 2. Same; lien for taxes paid after purchase at tax sale does not arise until after judgment in an action of ejectment The lien created by statute in favor of the purchaser at a tax sale, which was invalid for any other reason than that the taxes were not due for taxes paid subsequent to the purchase, (Code, §§ 4083-4) does not arise and is not bestowed except at the end, and as the result of a judgment in ejectment for the land so sold; and, therefore, a purchaser at a tax sale who has subsequently paid taxes upon such property, but in whose favor there has been no judgment rendered in the action of ejectment for said lands, can not maintain a bill in equity to enforce a lien arising from the payment of the taxes for years subsequent to his purchase. APPEAL from the Chancery Court of Colbert. The bill in this case was filed by the appellee, the Tradesmans National Bank, against the appellant, the Sheffield City Company, C. B. Ashe, as receiver of the Sheffield City Company, Robert H. Wilhoyte and Thos. L. Fossick, as trustees, and E. F. Enslen. The purpose of the bill and the facts of the case are sufficiently stated in the opinion. The prayer of the bill was as follows: "That your Honor will, on the hearing of this case, decree that orator has a lien on the property hereinbefore described for the monies paid out by orator as before stated, together with the interest thereon, in accordance with the laws of Alabama in regard to property sold for taxes; that the register of this court be required to [Sheffield City Co. et al. v. Tradesmans National Bank.] take and state an account and ascertain and report what amount of principal and interest is due orator by reason of the payments made by orator as hereinbefore set forth; that your Honor will by your decree direct that said lands be sold, or that so much thereof as may be necessary be sold, and the proceeds of said sale be applied to the payment of the amount so found to be due to orator. On the submission of the cause on the pleadings and proof, the chancellor decreed that "complainant has a lien on the property mentioned and described in the bill, for the monies paid out for taxes as set forth in the bill, in accordance with the laws of Alabama in respect to real estate sold for taxes, when the sale, on account of irregularities, is ineffectual to pass the legal title; and that said lien exists independent of the statutory remedy given for its enforcement, when a suit in ejectment fails, and may be enforced in a court of equity." There was then an order of reference to the register to state an account and ascertain the amount of State, county and municipal taxes paid by the complainant for which the lands were liable at the time of the sale mentioned in the bill and for the payment of which they were sold and the interest thereon, and also the amount of the taxes on the lands which the complainant has paid since such sales, with interest thereon Upon the coming in of the report of the register ascertaining such amounts, it was in all things ratified and confirmed, and it was decreed that said lots be sold if the amount so ascertained to be due was not paid within sixty days after the enrollment of the decree. From this decree the defendants appeals, and assign the rendition thereof as error. * * WILHOYTE & NATHAN, for appellants. -"At comman law the purchaser at a tax sale comes strictly and rigidly within the rule of caveat emptor. And if his tax title proves to be worthless he cannot recover the amount he has paid in an action against the officer, the owner, or the municipality." (The underscoring of the words strictly and rigidly is the writers.) |