O'Neal v. Lovett

• Decision Date: 30 November 1916
• Docket Number: 1 Div. 897
• Citation: 197 Ala. 628,73 So. 329
• Parties: O'NEAL et al. v. LOVETT et al.
• Court: Alabama Supreme Court

73 So. 329

197 Ala. 628

O'NEAL et al. v. LOVETT et al.

1 Div. 897

Supreme Court of Alabama

November 30, 1916

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill by William O'Neal and others against Frances P. Lovett and others, to redeem land from a mortgage foreclosure sale. From a decree for respondents, complainants appeal. Corrected and affirmed.

D.B Cobbs, of Mobile, and S.C. Jenkins, of Bay Minette, for appellants.

Ervin &amp McAleer, of Mobile, and Charles Hall, of Bay Minette, for appellees.

SOMERVILLE J.

The chancellor properly excluded all the testimony by interested parties as to declarations by James O'Neal, one of the vendors, and by J.A.B. Lovett, vendee, both of whom were deceased and their estates interested in the result of the suit. Where evidence inherently illegal is excluded on motion, it is of no consequence that the motion did not point out the true ground of objection. Moseley v. Mastin, 37 Ala. 216. This left no testimony before the court tending to show the existence or amount of a vendor's lien, except that of one McKenzie, who stated merely that he had at one time heard Lovett say that he owed a balance on the lot he bought from the O'Neals, but did not say how much.

This testimony alone could not support a finding for any particular amount, and hence complainants failed to support their claim as to a vendor's lien; the burden being upon them to overcome the prima facie effect of the recital of payment in the deed.

Complainants' counsel, however, insist that the chancellor erred with respect to the exclusion of the testimony of Mary Lovett, one of the respondents. She testified:

"The terms of the trade between my father and Miss Hettie O'Neal were as follows: My father sold her the two lots for $700, $200 of which amount she was to pay in cash, and she was given credit for $200 which my father owed Mr. O' Neal, the father of Miss Hettie O'Neal, on this same property."

Complainants objected to the interrogatory itself, and moved to exclude all the words of the answer "except in so far as they show a balance was due on this same property and unpaid." One ground of the motion to exclude was, "second, because it is her opinion or conclusion that the money was owing from her father to Hettie O'Neal's father."

If complainants desired to leave in evidence any particular part of this testimony, a motion should have been so framed as to point out to the...