dissenting. — This case was tried by the court without the intervention of a jury, and judgment rendered for the defendants. It cannot be questioned that the court erred in the admission of illegal eA’idence offered by the defendants; and the first question for consideration is, whether such error as matter of right entitles the appellant to a reversal. The rule settled by a long line of decisions, to' which there have been hut few exceptions, is, that where the court decides upon the facts as Avell as pronounces the law, if the legal evidence justified the finding, the judgment Avould be affirmed, notwithstanding the court had admitted the introduction of illegal eAddence.
In the case of Bogle v. Bogle, 23 Ala. 544, the court uses the following language: “We consider it unnecessary to inquire into the rulings of the court upon the other portions of the evidence. Much of it Avas illegal, but if it had all been rejected, Ave think enough remains to sustain the judgment of the court; and as under the act of 11 February, 1850, (Pamphlet Acts, 27), it is the duty of the court to decide questions of fact, growing out of administrations, without the intervention of a jury, unless upon the application of one of the parties, it follows that its action upon the whole evidence is a matter of law, and revisable here in the same manner as the decision of the court upon questions of fact arising upon a trial in the common laAV forums, which are referred to the court rather than the jury; as Avhere the competency of a Avitness is to be determined, the loss of a Avriting, or other questions of a like character. In these cases, this court Avill look to the whole evidence, if it is to be found in the record, and aauII not send it back for another trial, if enough remains to sustain its judgment, rejecting testimony Avliich may have been 'illegally admitted.”
*262In the case of Kirksey v. Kirksey, 41 Ala. 626, 635, the court uses the following language: “In passing on the merits of the case, we must look at the evidence as the probate judge should have done; and consequently no injury will result to appellants from the admission of illegal or irrelevant testimony.” In the case cited, the court critically examined the legal evidence, though conflicting, and reversed the judgment, not because of the admission of illegal evidence, but because the legal evidence did not warrant the finding of the trial court.
In Hurt v. Nave, 49 Ala. 459, it was said: “When a cause is tried without the intervention of a jury, the appellate court will not scan with critical accuracy, mere technical objections to evidence which was admitted, but will presume that the presiding judge, in making-up his decision, disregarded all illegal evidence.”
In Gaillard v. Duke, 57 Ala. 619, the.same rule was held, the court declaring, that the cause would not be reversed, because of the admission of irrelevant testimony.
In McDonald v. Jacobs, 85 Ala. 64, it was held that the admission of illegal, evidence, “would be error without injury, as the decree of the probate court is fully sustained without this evidence.”
In Dolan v. Dolan, 89 Ala. 256, it was said, that the rule does not apply “when it appears that the conclusion and judgment of the court are based upon illegal and incompetent evidence, without the consideration of which the finding cannot be supported.”
In Woodrow v. Hawving, 105 Ala. 240, it was held that when the case was tried by the court without a jury, although the trial court may have erred in the admission of evidence, yet if the judgment is sustained by all the legal evidence, this court will not reverse the case.
In Holmes v. The State, 108 Ala. 24, the same rule was declared, the court saying, “the presumption being here indulged that the action of the court in rendering its judgment, was induced by and rested upon the sufficient legal evidence.”
In Ramey v. Peeples Grocery Co., Ib. 476, we have the same principle declared; also in Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496; Manufacturing Co. v. *263Bessemer Co., 111 Ala. 332; Machine Works v. Furniture Co., 112 Ala. 488.
Other cases might be cited. In one of the latest decisions by this court — Scarbrough v. Borders, 115 Ala. 436 — the legal evidence was conflicting, and there were exceptions to the rulings of the court upon the admission of this testimony. Following the many decisions of this court, Haralson, J., speaking for the court, said: “The court rendered judgment on the evidence in favor of the defendant. We Avill not review the evidence. It Avas not free from conflict.” “On the trial by the court Avithout a jury, error in the admission of eAddence will not work a reversal, if the judgment rendered is sustained by the legal evidence.” The case was affirmed, on the ground that the legal evidence sustained the judgment, although there was conflict in the legal eAddence, and although the record may have shown the admission of illegal evidence. This principle Avas clearly recognized in the case of Dolan v. Dolan, 89 Ala. 256, the court adding that it has “no application, when it appears that the conclusion and judgment of the court are based upon illegal and incompetent evidence, Avithout the consideration of which the finding cannot be supported.” The rule with this qualification has become the settled Iuav of this State.
It is true that in the case of- Harwood v. Harper, 54 Ala. 669, it was said, “if illegal evidence has been admitted, the judgment must be reversed, unless the remaining eAddence is without conflict and supports the judgment.” This rule is at variance Avith the established doctrine of this court, when applied to cases tried by the court Avithout a jury. It is rare that a case tried by the court Avithout the intervention of a jury, comes to this court for review in Avhich there was no conflict in the evidence, and it has neArer been held or contended, that a mere conflict in the evidence entitled the appellant to a reversal. If the rule stated in Bogle v. Bogle, 23 Ala. 544, 546, that “in these cases (tried by the court without a jury), this court will look to the whole evidence, if it is to be found in the record, and will not send it back for another trial, if enough remains to sustain its judgment, rejecting testimony which may have been illegally admitted;” and in Kirk*264sey v. Kirksey, 41 Ala. supra, p. 655, where it is said: “Part of their evidence was clearly admissible and other parts were objectionable. * * * All the evidence being set ont, and being addressed to the court, and not to the jury, it was at most error without injury. pasging 0n the merits of the case, we must look at the evidence as the probate judge should have done, and consequently no injury will result to appellants from the admission of illegal or irrelevant testimony;” and in the many other cases cited supra, be applied, the illegal and irrelevant evidence will be rejected, and the cause considered precisely as if there had been no illegal evidence admitted. There has always been a distinction, in cases tried by the court without a jury, and cases where the facts were submitted to a jury.
In view of the long line of decisions, establishing the practice of this court, all of which must be set aside and overruled, in order to declare the principle now contended for, namely, that if on a trial by the court without a jury, there is error in the admission of evidence, the case must be reversed, unless all the legal evidence is without conflict and supports the judgment of • the trial court, we cannot yield our assent to its adoption.
We will now briefly refer to the evidence. After rejecting the illegal evidence, to-wit, the ledger accounts of Warren F. Smith, deceased, against the defendants, and the testimony of E. J. Smith, in relation thereto (Dismukes v. Tolson, 67 Ala. 386; Horton v. Miller, 84 Ala. 587), and the testimony of John W. Chaffin, a party defendant to the action, that he had paid the notes to Smith in his lifetime, as the agent of the plaintiff to collect them, (Acts of 1890-91, p. 557; 67 Ala. supra) the only material conflict relates to the admission of one of the defendants, John W. Chaffin, as to whether there was a balance due on the notes sued upon. There was no conflict of the execution of the notes, the transfer to plaintiff by the payee, Warren F. Smith, as collateral security, their re:delivery subsequently to 'him, and that he was to collect the notes as the agent of the plaintiff. John W. Dixon, a disinterested witness, testified that the defendant admitted on two occasions, that there was still due on the notes *265about $125. B. F. Cliett, a disinterested witness introduced by the defendant, testified that John W. Chaffin admitted to Dixon that he owed from $100 to $125 on the note. There was the letter also, signed “John W. Chaffin, May A. Chaffin, his mother.”
John W. Chaffin himself denied having stated that he owed any amount on the notes, but admitted that he said his mother owed a balance on account to W. F. Smith, and that he thought it was about one hundred dollars. If there were no other facts to support the plea of payment but those stated, we might proceed to render judgment for plaintiff, but there are some other facts in the case, and there are circumstances which lead us to believe the existence of legal evidence, as to facts which we are not at liberty to consider, in the condition of the record. The record presents a case Avhich in our opinion necessitates a reversal and remandment of the cause, that exact justice may be done between the parties.
Where a mortgage secures a note and also such additional indebtedness as may be contracted, if the mortgaged property is applied to such additional indebtedness- in preference to the notes, it cannot be said to have been illegally applied, there being no direction or agreement that it should be otherwise applied.
We think the demurrer to plaintiff’s replication properly sustained, and Ave find no error in overruling the objections to interrogatories propounded by the defendants to the Avitness Hudson.