Upon further consideration, after reading the evidence in general conference, and viewing only competent and legal testimony, we ascertained the pertinent facts to be as follows: The respondent Mary A. Warner and her husband T. B. Warner were not persons of great means. He was by trade a harness-maker, but a considerable time before his death retired. They lived in an apartment or room above a drug store in the Demint Building in the City of Huntsville, and he had a Confederate Pension of $40 every three months. At his death he left two insurance policies in which his wife Mrs. Mary A. Warner was the beneficiary that netted her $2500 and besides he left a small amount of cash.
Mrs. Mary A. Warner collected this money and deposited it in the bank in her name. Thereafter, with the aid and assistance of her son, both participating in the negotiations, she purchased a lot upon which a building was subsequently constructed as a residence; two rooms of which she occupied and the other rooms were occupied by the son Wm. A. Warner and his family. The lot was purchased for $1500, which Mrs. Mary A. Warner paid, and she received a deed to the lot. Following the purchase of the lot Wm. A. Warner, now deceased, the husband of the complainant Stella Warner and the father and grandfather of the other complainants, arranged with the Huntsville Building Loan Association to borrow $2500 on an "Own Your Own Home" plan. The loan was obtained in the name of Mary A. Warner. She, having the legal title, executed a mortgage on the lot and pledged a note for $1000, executed by John Mastin to W. A. Warner, and secured by stock in two corporations. Said note and collateral was the property of W. A. Warner, and, as recited in the mortgage, was transferred to the mortgagor by Warner. The mortgage embodied a power of sale for foreclosure on the lot and the pledged securities. The money obtained through *Page 562 this loan on the execution of this mortgage was paid out by the Huntsville Building Loan Association on the direction of W. A. Warner to different persons who furnished material and labor for the construction of the house. Both the notes and mortgage and the collateral note drew interest at the rate of eight per cent.
The evidence is further without dispute that the property was insured after completion of the building in the name of Mary A. and William A. Warner, and William A. Warner procured and kept up the insurance. The evidence is also without dispute that William A. Warner paid off the $2500 mortgage a short time before his death.
Mary A. Warner testified:
"I never asked my son, W. A. Warner, Sr., to pay any money for me to the Huntsville Building Loan Association. It was before he brought me this pass book and the mortgage and note and told me it was all paid. He told me about it, but I don't know when. It was a good while before he handed the mortgage and note to me. When he handed that book to me he didn't say anything else other than, 'It has all been paid for.' He did not at that time say I owed him anything. He did not say at that time that he was going to look to the home to stand security on a debt I owed him.
"Q. Did he ever claim to you at any time while he lived that he had any interest in the home? A. He claimed that if he had the money to pay his part that he would have his part of it, but he never got the money was the way I understood it. That was after I started the building. I didn't ask anybody to transfer John Mastin's note for $1,000.00 to me. I never say (saw) the Dixie Warehouse Company stock. I don't think I have, but I know he had stock in the Dixie Warehouse. In this note and mortgage to the Huntsville Building and Loan Association that Dixie Warehouse stock is mentioned. I had no knowledge that it was mentioned in that note and mortgage at the time I signed them. I never asked anybody to transfer and assign to me any Dixie Warehouse stock. I didn't know any Dixie Warehouse stock had been assigned to me. I never heard of there being any Erwin Manufacturing Company stock being mentioned in that note and mortgage over there. I never asked anybody to transfer and assign any Erwin Manufacturing Company stock to me. I didn't ever know until recently that it had been transferred to me or mentioned in these loan papers. I never had any of that collateral that you have asked me about in my hands or possession at any time."
Mary A. Warner further testified: "When the house was completed and I moved in, I told my son, William Warner, I wanted two rooms for myself and he could live in the balance of the house. That was all that was said about the occupancy of the house, and I got the two rooms I wanted, and his family moved into the other. The house was built in '31 and from then on until he died in '43 nothing was ever said about any arrangements about occupying the house or who owned the house or anything about it. I didn't have any arrangements with him about his getting any money out of the house. * * * What that house cost me is down in that little book, I think, someplace, what the house cost. Now that's extra on the lot. I remember when I signed the mortgage. As to how much money I had at home or in the bank at that time, I don't know how much I had. I don't know how much I have got yet. But I didn't have enough to refinish paying for the house. That is the reason that loan was made. All the money I have spent on my house and have left is money I have saved from my pension and the insurance I got from my husband and what my children paid me. Albert was the only one of my children who ever borrowed from me. And if he ever borrowed any money from me he paid it back. He didn't owe me anything when he died, not a penny."
The evidence shows that Mary A. Warner and her son W. A. Warner were very close and intimate. She kept a diary in which she entered many things and in which W. A. made entries. On one page appears an itemized statement made by Mary A. Warner in April and June, 1931, showing that *Page 563 she paid for the lot and for material used in the building a total of $2800.00. On the following page entry is made as of September 28, '31, "Signed mortgage for $2500 Oct. 27, '31. Started building house on July First, finished Oct. 30, '31. Cost 6500 Hundred." On page 17, "March 14, '33. W. A. has kept me in coal water lights gas paid insurance on house. I paid tax which is $103.13, Mary A. Warner. Paid tax every year for 6 years which is 103.18 each time, Mary A. Warner."
On page 91 of the diary, dated September 11, '34, is the following entry: "Children keep my 2 rooms just as they are until all of you are gone for a home so no one can say get out. I know how 'tis to be old. No one cares if you are sick and lonesome. Some be glad to put out so they could be it. We can't tell what may happen.
"By, by
"Miss Mary Warner "Your Mother to my 4 children."
On page 93, dated July 31, '38 is the following:
"Sunday A.M.
"To all concerned. Don't think Stella or Dot cares if I was gone, but will say I am at home. Hope to stay until I am 100. Ha. Ha. If I go soon don't want them come in, but move me if possible. I will come back and scare the life out. They don't seem to care. Never come in when I am sick to see if could give me a drink. If I die in night no one would know until W. A. came home next night."
On defendant's Exhibit "D" in respect to insurance is the following entry: "Address — 519 Walker Street. Initials or style of firm: Warner, Mary A. and W. A." A like endorsement is found on each of the policies of insurance on the house exhibited and attached to the record.
The testimony of Mary A. Warner and the exhibits thereto which we have noted above and the other exhibits offered by the respondents were not objected to by complainants, and they were interested in the issues involved, and had a right to waive the rule of exclusion when the testimony was offered by their adversary. We think there can be no doubt that the sole owner of the estate left by a decedent is the only person interested in the rule, may waive it, and did waive it in the case at bar by failing to object to the competency of the witness called to testify against them by their adversary. Rogers v. Austill, et al., 213 Ala. 163, 104 So. 321; Butler v. Jones, 80 Ala. 436,2 So. 300; Hendricks v. Kelly, 64 Ala. 388, 391. But the Act entitled "An Act to regulate the practice in equity cases in the matter of objection to and consideration of testimony and evidence," Act 101, 1943 Regular Session, p. 105, Code 1940, Tit. 7, § 372.(1), does not relieve the parties from making specific objection to the competency of witnesses, and, therefore, does not save the waiver of the statutory rule. Des Portes v. Hall et al., 238 Ala. 641, 192 So. 899; 70 C.J. p. 184, § 252, p. 372, § 490; 28 R.C.L. p. 448, § 35; 20 Am.Juris. p. 246, § 253.
The entries on respondents' exhibits noted above are not within the rule of exclusion. They are admissions against interest or collateral matters illustrating and giving character to the acts of the parties. 22 C.J. p. 297, § 324, Note 5 (Alabama Cases); see also 31 C.J.S., Evidence, § 272, McDonald v. Harris, 131 Ala. 359, 366, 367, 31 So. 548; Warten v. Black, 195 Ala. 93, 70 So. 758. The rule of exclusion is limited to personal dealings in which both parties participated. Southern Nat. Gas Co. v. Davidson, 225 Ala. 171,142 So. 63; Whitfield v. Hall, 235 Ala. 620, 180 So. 293.
The complainants' rebuttal evidence shows that Stella Warner, the widow of W. A. Warner, at the time the building in controversy was being constructed, was in business for herself, operating a cafe in the City of Huntsville shown to be a profitable business; that she supported the family out of its earnings and also borrowed money from the Henderson National Bank about the time her husband bought the cotton which he sold to pay off the mortgage, and her testimony is corroborated by statements made by the bank attached as exhibits and offered in evidence showing an active checking account *Page 564 and a loan of 925 by the bank. It also ap pears from the statement from the bank that the deceased W. A. Warner had an active account on which he drew checks in payment of monthly installments to the Huntsville Building Loan Association on the mortgage loan, and the evidence further shows that he was regularly employed on a salary of $250 per month. The testimony of Mrs. Mary A. Warner shows that the income enjoyed by her up to one year prior to giving her testimony was her pension as a widow of a Confederate Soldier of $30 per quarter, received from the State of Alabama, and small contributions from some of her children.
The testimony of Mrs. Edna Foster and Paul Foster, her husband, shows that at the time the building in question was being constructed, they were building a house for themselves; and the testimony goes to show that they, with the family of W. A. Warner and Mrs. Mary Warner, lived in the same building on Walker Street known as the old McAnelly Place; that they and the Warners frequently talked about building operations; that they and the Warners discussed the house they were building, and their testimony tended to show that Wm. A. Warner and his mother were jointly interested in building the house in question; that Mary A. Warner was to have and occupy two rooms and W. A. Warner and his family occupy the other part of the house and he was to pay for building the house in whole or in part. The evidence shows that the total cost of the completed project was $6500; that Mary A. Warner, including the cost of the lot, paid into the project $2800. This is shown by her testimony and the diary, which she offered in evidence.
The conclusion is inescapable that W. A. Warner paid the mortgage debt of Mary A. Warner to the Huntsville Building and Loan Association with interest due thereon and other necessary sums of money to complete the building of the house. The purpose of the joint adventure was accomplished when the house was completed and the parties entered into possession, each, by common consent, assuming possession of the tenement he or she desired to occupy. The adventure was to build a home for the parties, and when W. A. Warner paid off and discharged the mortgage and continued his possession without question by the other party to the adventure for a period of twelve years, more time than required to establish title by adverse possession, his right in the tenement which he occupied became fixed and certain. Likewise, the possession and interest of Mary Warner, who selected and only claimed the two rooms which she occupied with the right to use the bathroom in common with the occupants of the other tenement, also became fixed. The evidence shows that her contribution to the joint adventure, including the purchase money for the lot, was $2800, and that the total investment amounted to $6500, which could only have been paid into the project by W. A. Warner, Sr., deceased. It, therefore, becomes the duty of the court in this case to declare and settle the rights of the parties. Talley v. Talley, ante, p. 84, 26 So.2d 586; Pfingstl v. Solomon, 240 Ala. 58, 197 So. 12.
On the facts stated, we hold that the complainants are entitled to relief; that the tenement on the west side of the house occupied by Wm. A. Warner and his family during his lifetime and which complainants have continued to occupy, in which Wm. A. Warner had a perfect equity, passed to and vested in complainant under the statutes of descent and became their property at the moment of his death, no necessity for an administration appearing. Forman v. McAnear, 219 Ala. 157,121 So. 538. That the other tenement consisting of the two east rooms with the right to use the bathroom with the tenants of the other tenement, is the property of the respondent Mary Warner.
The legal title to one-half undivided interest in the lot upon which the building is situated, described in the bill, is divested out of the respondent Mary Warner and vested in the complainants as successors in interest of W. A. Warner, Mary A. Warner to have and hold the other one-half undivided interest in said lot.
The temporary injunction heretofore issued on the filing of the bill which was dissolved by a decree of the circuit court *Page 565 is reinstated and made perpetual together with restraining order issued by this court continuing in force and effect said injunction restraining the defendants from the prosecution of any suit to dispossess the complainants.
The deed executed by Mary A. Warner to her daughter Mrs. Daisy McKnight and her son Robert Eston Warner in so far as it affects the tenement of the complainants and their title in the lot is vacated, canceled and held for naught, and the register is directed to enter upon the record of said deed in the office of the Judge of Probate of Madison County, Alabama, the fact of such cancellation stated above and sign the same in his official capacity. The register is also directed to enter upon the margin of the record of the deed from Griffiths to Mary A. Warner in the office of the Judge of Probate of Madison County, the fact that by decree of this court this day entered a one-half undivided interest to the lot involved in this litigation is divested out of said Mary A. Warner and invested in complainants and sign the same in his official capacity.
Application for rehearing is granted. The judgment of affirmance is set aside and a decree is here rendered reversing the decree of the circuit court, granting to complainants relief as above indicated. Let the appellees pay the cost of this suit and of the appeal.
Application for rehearing granted. Reversed and rendered.
FOSTER, SIMPSON, and STAKELY, JJ., concur in the opinion.
LIVINGSTON, J., concurs in the interpretation of the Act No. 101 of 1943.
GARDNER, C. J., and LIVINGSTON and LAWSON, JJ., dissent.
On Application for Rehearing and Modification of Decree Entered October 25, 1946.