I concur in the result without regard to a consideration of the check book stub, and therefore am not committed to what is said in the opinion as to the admissibility of such stub in evidence.
ANDERSON, C. J., and McCLELLAN and MAYFIELD, JJ., concur in the conclusion and result of this appeal, but not in all that is said in the opinion.
They are of the opinion that the stubs of the check book were not admissible in evidence for the following reasons: Neither the private check book as a whole nor the stub part of it is prima facie a "shop book" within the meaning of that word as used in reference to the rules of evidence. The stubs of a private and individual check book are only at best mere private memoranda of the owner and user of the book. This has been expressly held by this court. Carter v. Fischer, 127 Ala. 52,28 So. 376.
If it could be considered within the shop book rule of evidence, it was not properly or sufficiently authenticated and connected with the transaction in question to render it admissible in this case. The only evidence to authenticate or to connect it with the other evidence in the case was that of the owner of the check book. He was an incompetent witness to testify as to his transactions with the other, deceased, party whose estate was interested in this suit. If the statute renders him incompetent to testify as to the transactions purporting to be evidenced by the stubs, surely he was incompetent to authenticate the stubs and to connect them with the transactions which would bind the estate of the deceased. The stubs do not purport to bind the deceased. At best, they are only appellee's private memoranda of checks which the deceased is claimed to have received. Surely the stubs cannot be placed in a higher or better class of documentary evidence than ordinary shop books, regular business ledgers or day books, which purport to register or record all one's business transactions. This court has repeatedly held that such shop books could not be so authenticated and connected with the transaction in question if the witness attempting to so authenticate and to connect them with the transaction in question which the entries purported to record or register was himself incompetent to testify to the transactions themselves which purported to be so recorded or registered. The case of Dismukes et al. v. Tolson et al., 67 Ala. 386, and several cases following it are express authorities on this question. These cases expressly construed our statute on the subject, and the statute has been repeatedly re-enacted with this construction placed on it. It is therefore too late now to depart therefrom.
We likewise do not approve of what is said in the opinion of Justice SAYRE with respect to the effectiveness of a parol agreement between the parties to the mortgage to impose on property a charge or lien to secure a different debt or obligation from that originally intended. The statute of frauds as to real property and the statute prohibiting parol mortgages of personal property and the well-founded decisions of this court conclude to the contrary. Edwards v. Dwight, 68 Ala. 389; Morris v. Alston, 92 Ala. 502, 9 So. 315; Stringfellow v. Ivie, 73 Ala. 214; Cade v. Floyd, 120 Ala. 424, 24 So. 944.
In addition to the foregoing, and in a sense independent thereof, Justice McCLELLAN entertains the view that the effect in law of the agreement proven to his satisfaction by the respondent was but a rescission, by mutual consent, of the payment of $3,000 made by McWhorter on November 14, 1904, thereby effecting the restoration of the mortgage debt and its security to the status existing before the stated payment (later rescinded) was made. *Page 513