The rule of exclusion applied to the testimony of Stella Warner and Dorothy Warner is equally applicable to the testimony of the respondent Mary Warner, in respect to any conversation or transaction with her deceased son W. A. Warner, except that she may testify that she had no such transaction with her son. But her evidence touching the payment of the mortgage and claiming that it was done with her money is within the rule of exclusion. Her evidence excluded leaves the evidence without dispute that W. A. Warner procured the loan from the Building and Loan Association and put up collateral in addition to the mortgage on the lot, and going to show that the money so obtained by the loan was used in the construction of the house on the lot. The fact that the title to the lot was in Mary Warner necessitated, of course, the execution of the mortgage by her.
The evidence is without dispute that W. A. Warner and his family and Mary Warner went into possession of the building on the same day, W. A. Warner occupying the rooms on one side of the building and Mary Warner occupying the rooms on the other side of the building; that W. A. Warner and his family remained in possession until the day of his death and are still in possession of said tenement or rooms. The evidence is also without dispute that no rent was ever paid, no demand for rent was ever made, and the evidence clearly goes to show that, neither rent nor liability for use and occupancy was contemplated. *Page 561
The parties acted jointly to establish a place of abode for themselves and W. A. Warner, acting in his lifetime, discharged the mortgage on the building by payment of the indebtedness secured thereby. His possession under the circumstances was sufficient evidence of an interest to warrant his action in discharging the lien to protect his right. And under the doctrine of equitable subrogation, the complainants claiming under him are clearly entitled to subrogation to the lien and security held by the Building and Loan Association on the property, and to have said lien foreclosed as a means of protecting their interest and recovering the money which W. A. Warner paid out in discharging said lien. Murphree v. Clisby,168 Ala. 339, 52 So. 907, 29 L.R.A., N.S., 933; Ætna Ins. Co. v. Hann, 196 Ala. 234, 72 So. 48; Dothan Grocery Co. v. Dowling, 204 Ala. 224, 85 So. 498. These cases are sufficient to illustrate the principle and many others could be cited.
Another well settled principle is applicable. Mary Warner, the holder of the legal title, stood by and allowed W. A. Warner to procure the money to construct the building, and allowed him to go in possession and occupy more than one-half thereof for eleven years without demands for rent, and while so in possession to discharge the lien of the mortgage with his own funds during his lifetime. Under the doctrine of equitable estoppel, she should not be allowed to plead the statute of frauds in denial of his right. Weil v. Hill, 193 Ala. 407,69 So. 438; Alabama G. S. R. Co. v. South. N. A. R. Co., 84 Ala. 570,3 So. 286, 5 Am.St.Rep. 401; Franklin v. Pollard Mill Co.,88 Ala. 318, 6 So. 685.
The allegations of the bill and the prayer are sufficiently broad to cover this relief.
I, therefore, respectfully dissent from the opinion and conclusion of the majority, and hold that the decree of the circuit court should be reversed, and one here rendered subrogating Stella Warner and her children to the security and lien of said mortgage, and that the same should be foreclosed.
SIMPSON, J., concurs.
On Rehearing.