— 'The complainant, Goodlett, is clearly not a competent witness, in the present suit, as to the trade or exchange of lands alleged to have taken place between himself and Mrs. Hansell during her life-time. He is excluded by the» provisions of section 3058 of the Code of 1876, as it has been repeatedly construed by the past decisions of this court. This land trade, for the specific performance of which the bill is filed, was a transaction with the deceased, involving many statements made by her as to its terms and conditions. If the suit were one directly against the estate of Mrs. Hansell, the complainant’s testimony would be excluded by the very letter of the statute. — Code, § 3058. It would be prejudicial to the rights of the decedent, whose estate might be liable to diminution by reason of it. — Ala Gold Life Lns. Co. v. Sledge, 62 Ala. 566. The statute has been uniformly construed to embrace many cases, within its spirit and purpose, which do not fall within its letter. Beneficiaries, who are not directly parties of record, have been held to be excluded for incompetency. — Drew v. Simmons, 58 Ala. 463; McCrary v. Rash, 60 Ala. 374; Keel v. Larkin, 72 Ala. 493. In a suit by a transferree, the transferror, though not a party to the action, has been excluded. — Lewis' Adm'r v. Easton, 50 Ala. 470. And, generally, the statute is construed to protect, not only the estate of a decedent, where the purpose or result of the evidence would be to diminish it, but also the rights of heirs, or others, who claim in succession wider the decedent. — Boykin v. Smith, 65 Ala. 294; Key v. Jones, 52 Ala. 238.
2. • It is very true, as insisted, that the defendants, or adversary parties, had a right to waive the objection to the complainant’s testimony based on his incoinpetency, the statute being for the protection of estates, and those claiming in' suc*219cession or privity. — Dudley v. Steele, 71 Ala. 423. But the mere cross-examination of the complainant, coupled with a timely objection to his competency previously interposed, would not constitute such a waiver. The uniform practice is to first object to the competency of the witness, either in whole or part, and then proceed to cross-examine. Any other course would lead to intolerable delays in the administration of justice.
3. • It is argued by appellant’s counsel, that in as much as the complainant was a competent witness to establish his title, under the statute existing at the time of his alleged contract in 1873, under the provisions of section 2704 of the Revised Code of 1867, the General Assembly had no constitutional power to deprive him of the right by changing the rule of evidence, as was done by the act of March 2,1875, now embodied in section 3058 of the present Code, which we have attempted to construe above. "Without committing ourselves to the. view, that there is any material difference in the meaning of the two statutes, so'far as concerns the question under discussion, it is manifest that the argument is without force. While retroactive criminal legislation is prohibited by both the Federal and State constitutions, under the designation of ex-post-facto laws, and therefore, any change in the laws of evidence, rendering a criminal conviction more easy than it was when the crime was committed, would be offensive to constitutional provisions; the rule is. otherwise as to changes in the rules of evidence in civil cases. These pertain to the remedy, and form no part of the obligation of an existing contract. It is a plain proposition, free from all doubt, that no one possesses a vested right to existing rules of evidence, in civil, causes of action, and the lawmaking power are at liberty to change them, from time to time, within the broad latitude of their sound discretion. — Cooley’s Const. Lim. 208 ; Sedgw. Const. & St. Law, 689, 691.
4. We have examined the testimony of the various witnesses in this case, with great care; and there is much in the record which strongly inclines us against reversing the decree of the chancellor, refusing specific performance of the contract sought to be enforced by complainant. Leaving out of view the vast deal of illegal evidence, which the chancellor has properly refused to consider, there is one point upon which we prefer to place our affirmance of his decree. We are not satisfied from the evidence that Mrs. Ilansell, through whom the complainant claims title, had any interest, legal or equitable, in the “ Moulton lot,” the conveyance of which by the defendants is sought to be compelled by specific performance in this suit. The rule prevails, that if the allegations of the bill are not established by clear and definite proof, or if the evidence is left in doubt and uncertainty, the court will refuse to decree specific per*220formance. — Aday v. Echols, 18 Ala. 353; Ellis v. Burden, 1 Ala. 458.
5-6. In our judgment, it is left in great uncertainty and doubt, whether or not the deed, under which Mrs. Hansell claimed this property by conveyance from her husband, bearing date the 3d day of January, 1867, was ever delivered to her by him, so as to operate as a deed. The only attesting witness to the instrument was James S. Clark, who testifies that his own signature, or attest, was placed to it after the death of the grantor, and on the request of the grantee. Neither he, nor any other person, proves its delivery. The only evidence of such delivery consists in its possession by Mrs. Hansell, who is shown to have claimed the property under it. This, if unrebutted, might prima facie be sufficient. It is sought to overcome this presumption of delivery by introducing the testimony of Mrs. Hansell herself, given during her life, in a certain suit at law involving the title to this same property, in which the present defendants, excepting alone Kelly, were plaintiffs, and David C. Groodlett, the present complainant, was defendant in ejectment. Mrs. Hansell, being now deceased, her testimony in the former suit is admissible in the present suit, without any question. The subject of controversy in the two suits is the same, involving the title to the same tract of realty, and the parties are the same, excepting only one, who claims title through privity with the plaintiffs in the former suit. This brings the case within the rule. — Long v. Davis, 18 Ala. 801; Clealand v. Huey, Ib. 343; 1 Greenl. Ev. 163; 2 Best Ev. §496; Marler v. The State, 67 Ala. 55. There is some controversy, as to what Mrs. Hansell swore on the former trial, as to how she came in possession of the deed; but the evidence on the subject is not conflicting, or irreconcilable. We féel no hesitation in believing that her statement was, that she found the deed among the papers of her husband, after his decease. This seems probable in view of the imperfection of the instrument for want of ackbowledgment by the grantor, or attestation by any witness. The husband of the alleged grantee, being a lawyer by profession, would not probably be ignorant of this plain requisite to the validity of a deed, which is a matter of common learning, and would not, therefore, have been likely to deliver it in its imperfect state. If the deed in controversy was never delivered by Hansell to his wife, she, of course, acquired no title to the property, and could herself confer none.
In this view of the case, there is a fatal defect in the proof, and a consequent variance between allegata and probata, which do not correspond. The complainant has failed to establish a necessary averment of his bill, without which he must also necessarily fail to recover.
*221There are other grounds, perhaps, upon which we might safely place our affirmance of the ghancellor’s decree, but these we do not propose to consider.
7. It is suggested that the decree is erroneous, because the dismissal of the bill was in vacation, and not in term time. This would be true, if the judgment of the court had been on demurrer to the bill (or, perhaps, on motion to dismiss the bill for want of equity), as in the cases of Kingsbury v. Milner, 69 Ala. 502, and other cases in which we have followed that ruling. But no amendment of the pleadings can supplement the failure of the proof, and the case is not one whose defects can be cured by amendment.
Affirmed.