This suit was commenced in the Circuit Court of Madison County, Alabama, in equity, by Ronald S. Warner and Jeanne Warner, minors, by their next friend, Opal Warner, and by Louis D. Warner, Dorothy I. Warner and Stella E. Warner, as complainants, against Mary A. Warner, Eston Warner and Daisy McKnight as respondents. As originally brought, the bill claims certain interests in the lands described in the bill, in complainants as against the respondents.
To state the theory of the original bill briefly, it was averred that William A. Warner, son of the respondent Mary A. Warner, and husband of the complainant Stella E. Warner, father of Dorothy I. Warner and Louis D. Warner, and grandfather of Ronald S. Warner and Jeanne Warner, entered into an agreement with the respondent Mary A. Warner in the year 1930-1931, which agreement was without dispute shown to be entirely oral, whereby the respondent Mary A. Warner would purchase a certain lot in Huntsville, Madison County, Alabama, described in the bill, and to take title thereto in her name, and that the said William A. Warner, who died before the litigation arose, was to furnish the money to build a residence upon the lot in question, wholly at his expense, and that upon completion of the residence, the respondent Mary A. Warner would occupy two rooms of the residence, and William A. Warner and his family, who at the time of the alleged agreement consisted of himself, Stella Warner, his wife; Dorothy Warner, his daughter, Louis D. Warner, his son, and William A. Warner, Jr., another son, would occupy the remainder of the residence.
The alleged oral agreement, upon which the complainants rely according to the evidence offered, was in the process of making for more than a year before its alleged consummation by the parties. The testimony offered to establish the alleged parol agreement, if admissible, tends to show that the agreement was finally consummated about July 1931. A residence was erected on the lot, and the respondent Mary A. Warner, in whom the title to the lot rested, moved into the same about September 28, 1931; and William A. Warner, Sr., and his children, Dorothy I. Warner, Louis D. Warner, and William A. Warner, Jr., and his wife, Stella Warner, also moved into a part of the building on the same day.
After Mary A. Warner and her son and his family moved into the residence, as aforesaid, they continued to reside there until all of the children of William A. Warner moved away from Huntsville, Alabama. Nothing was said about rent, and no rent was paid; nor was anything said about the duration of occupancy.
Opal Warner, the mother of Ronald S. Warner and Jeanne Warner, is alleged to be the widow of William A. Warner, Jr. The record shows that she did not move *Page 559 into the premises in litigation until after the suit arose.
By the original bill, and under the alleged agreement, complainants claim that William A. Warner at the time he died, on March 17, 1943, had a perfect equity in the lands described in the bill; an equitable lien or mortgage upon said lands. Complainants amended their original bill and claimed that the respondent appellee Mary A. Warner and William A. Warner, deceased, by virtue of the aforesaid alleged oral agreement, became joint adventurers in the purchase of said lot and the improvements on the same.
Mary A. Warner on April 15, 1943, executed a deed to the property involved in this litigation, by which, after retaining a life estate in the property in herself, she conveyed the same to respondent appellee Daisy McKnight, and at her death to the respondent appellee Eston Warner in fee simple. By the original bill, appellants claimed this conveyance constituted a fraud upon them.
The prayer of the bill was for (a) the equitable relief of specified performance of the alleged oral agreement; (b) a decree declaring in appellants a perfect equity in the dwelling on the land, with other incidental relief; (c) a decree declaring an equitable mortgage upon the lot and dwelling in appellants for the amount expended by William A. Warner, deceased, upon the dwelling, and a foreclosure of same; (d) an order enjoining the prosecution of an unlawful detainer suit commenced before the filing of the bill by appellee Mary A. Warner against Stella Warner; and (4) a decree praying that the aforesaid deed from Mary A. Warner to Daisy McKnight, et al. be set aside as fraudulent and void as against the appellants.
Under the amended bill and the prayer of the same, the appellants prayed for a decree declaring that appellee Mary A. Warner and William A. Warner, Sr., deceased, were joint adventurers of the aforesaid lot and its improvements at the time of his death, and by reason thereof that the appellants and the said Mary A. Warner should be by the court decreed to be equitable joint owners.
Appellees separately and severally answered the original and amended bill filed in the court below by appellants, and specifically denied the alleged oral agreement set up by appellants in their bill, and demanded strict proof. Appellees also separately and severally to the original bill and the bill as finally amended filed a special plea of the statute of frauds.
The cause was submitted in the court below upon the depositions of the parties and their witnesses. When causes are thus tried in the lower court, it is the duty of this Court on appeal to sit in judgment upon the evidence. Title 13, section 17, Code of 1940; Wood v. Foster, 229 Ala. 430, 157 So. 863; Pollard v. Simpson, 240 Ala. 401, 199 So. 560; Cryar v. Cryar,243 Ala. 318, 10 So.2d 11; Wells v. Wells, 243 Ala. 533,10 So.2d 853.
The testimony offered by complainants tending to establish the alleged parol agreement was objected to because the agreement was void under the statute of frauds. The testimony of Stella Warner and Dorothy I. Warner was also objected to by appellees because said witnesses had a pecuniary interest in the result of the suit or proceeding, and they should not be allowed to testify against the appellees to whom their interest was opposed as to any transaction with or statement by William A. Warner, deceased, husband of Stella Warner, whose estate was interested in the result of the suit.
The trial court found the issues in favor of the respondents, and entered a decree dismissing the bill. In the decree the trial court ruled that the testimony of Stella Warner and Dorothy Warner, outlined above, was inadmissible under the provisions of section 433, Title 7, Code of 1940. Presumably, of course, the trial court did not consider the testimony of Stella Warner and Dorothy Warner in arriving at his conclusion on the facts. He also ruled that the oral contract between Mary A. Warner and William A. Warner, deceased, was prohibited by the statute of frauds, and was therefore null and void; that if William A. Warner ever had an *Page 560 equitable lien on the house and lot by virtue of the payment and discharge of the $2500 mortgage thereon to the Huntsville Building and Loan Association, such lien has been discharged, liquidated and offset in full by the value of the use and occupation of the premises by William A. Warner and his family.
Stella Warner and Dorothy Warner, wife and daughter, respectively, of William A. Warner, deceased, testified that they heard the oral agreement between William A. Warner and his mother, Mary A. Warner, relative to the purchase of the lot and the building of the house on it. They related the details of the agreement, over the objections of respondents. They have a pecuniary interest in the result of the suit, and their testimony was as to statements made by a decedent whose estate was interested also. They were not called to testify to it by the parties to whom their interest is opposed. The trial court correctly ruled that they were incompetent witnesses as to the details of the transaction. Section 433, Title 7, Code of 1940; Pfingstl v. Solomon, 240 Ala. 58, 197 So. 12. Section 433, supra, prohibits the testimony although it is favorable to the interest of the estate, and the witness is called in behalf of such interest. Pfingstl v. Solomon, supra; McDonald v. Harris,131 Ala. 359, 31 So. 548; Adler v. Pin, 80 Ala. 351; Watson v. Appleton, 183 Ala. 514, 62 So. 765; Qualls v. Monroe County Bank, 229 Ala. 315(3), 156 So. 846; Richardson v. Dean,237 Ala. 421, 187 So. 176, notes 117 A.L.R. 609: see, also, Jennings v. Provident Life Accident Ins. Co., 246 Ala. 689,22 So.2d 319.
Absent the testimony of Stella Warner and Dorothy Warner, we are not reasonably satisfied that William A. Warner and Mary A. Warner made the oral agreement set out in the bill of complaint. It is therefore unnecessary that we consider the applicability of the statute of frauds in respect to such a contract, nor need we consider whether such an agreement constitutes a joint adventure. Conceding, without deciding from other evidence in the record that William A. Warner paid the $2500 mortgage to the Huntsville Building and Loan Company, we are further satisfied that the use and occupation of the premises involved was ample repayment, and that Mary A. Warner did not owe William A. Warner anything at the time he died. Williams v. Williams, 210 Ala. 372, 98 So. 200.
The rulings and finding of the trial court was in accord with what we have said, and is due to be and is affirmed.
Affirmed.
All the Justices concur, except BROWN and SIMPSON, JJ., who dissent.