The appeal is by W. K. Redwine from a final decree of the circuit court of Colbert County, in equity, ordering that land be sold for division of the proceeds among tenants in common; that the proceeds be distributed, one-fourth to complainant, W. K. Redwine, one-fourth to respondent T. R. Redwine, and one half to respondent, cross-complainant, Lenora Redwine Jackson; that a purported conveyance to complainant from his brother, R. C. Redwine, deceased, be annulled and vacated in so far as it is a cloud on the title of the respondent, Lenora Redwine Jackson, and that it be cancelled of record.
Mark D. Redwine died intestate on or about December 4, 1938, leaving a tract of land of approximately 960 acres. He was survived by his wife, Mollie Redwine, and by four children by a former wife, namely, W. K. Redwine, R. C. Redwine, T. R. Redwine, and Lenora Redwine Jackson.
The estate of Mark D. Redwine was administered in the probate court of Colbert County and is the course of administration approximately 320 acres of land were set aside to thejddow, Mollie Redwine, as dower and homestead.
In the latter part of 1939 Lenora Red-wine Jackson instituted proceedings in the circuit court of Colbert County, in equity, against her brothers, W. K. Redwine, R. C. Redwine, and T. R. Redwine, seeking a division in kind of the lands of Mark D. Redwine, other than that part set aside to the widow. While that proceeding was pending R. C. Redwine died testate, leaving all his property to his wife, Lela Red-wine. Lela Redwine was substituted as a party respondent in the place of her deceased husband. A decree was rendered partitioning the land involved in that proceeding, approximately 640 acres, one-fourth to Lenora Redwine Jackson, one-fourth to W. K. Redwine, one-fourth to T. R. Redwine, and one-fourth to Lela Redwine, the widow of R. C. Redwine, deceased.
After the death of Mollie Redwine, this partition proceeding was instituted in the circuit court of Colbert County, in equity, by W. K. Redwine against his sister, Lenora Redwine Jackson, and his brother, T. R. Redwine.
Simply stated, the purpose of the bill was to secure the sale of the 320 acres of land which had been set aside to the widow, Mollie Redwine, for division of the proceeds among the complainant and respondents, as their interests are made to appear.
Under the pleadings and evidence one of the questions presented to the trial court was whether or not there was a necessity for the sale of the land, the respondents contending that it could be divided in kind. The trial court decreed that the lands could not be equitably divided in kind and ordered a sale. But that part of the trial court’s decree is not questioned here and no further reference will be made in this opinion to that feature of the case.
As material here, the bill as amended averred in substance that the complainant and the respondents are joint owners or tenants in common in and to the suit property; that “the complainant owns a one half undivided interest in said lands, less *568the oil and mineral rights in a one, fourth undivided interest therein, which mineral and oil interests are owned by the respondent Lenora Jackson, same having been reserved by deed from R. C. Redwine to W. K. Redwine, dated July 5, 1939, and appearing of record in the office of the Judge of Probate of Colbert County, Alabama, in deed record No. 126, page 488. The respondent T. R. Redwine, owns a one fourth undivided interest in said lands and the respondent Lenora Jackson owns a one fourth undivided interest in- said lands in fee simple and also, the oil and mineral interest in the undivided fourth originally owned by T. R. Redwine, and now owned by the respondent Lenora Jackson.” (Emphasis supplied) It is clear that the initials which we have put in italics were intended to be R. C.
The material part of the prayer of the bill as amended was, in substance, that the lands be sold and that the proceeds be divided in accordance with the interests of the parties to the suit as -averred in the bill as amended.
The respondent, Lenora Redwine Jackson, filed her answer which she asked to be taken as her cross bill. She admitted that the complainant and the respondents are the owners of the suit property. She admitted that the interest of the respondent T. R. Redwine is correctly averred in the bill as amended, namely, an undivided one-fourth interest. She denied that the bill correctly averred her interest in the land and that of the complainant and averred that her interest in the land was a one-half undivided interest and that of the complainant was only a one-fourth undivided interest. She averred further, “that the only interest of complainant in said lands is an undivided one fourth interest which he inherited from -his father, Mark Redwine; that respondent is advised that complainant is claiming an additional one fourth interest in said lands owned by R. C. Redwine, now deceased, but respondent avers that such claim is unfounded and that the deed alleged to have been executed from R. C. Redwine to W. K. Redwine is wholly fictitious and void and was never legally executed and that complainant took nothing by reason of said fictitious, fraudulent and forged deed.”
As amended, the answer and cross bill of the respondent Lenora Redwine Jackson, in pertinent part, prayed as follows: “That upon the final hearing of this cause your Honor will order, adjudge and decree that this Respondent is the owner of the legal title to an undivided one-half interest 'in the lands described in the bill of complaint; that W. K. Redwine owns an undivided -one-fourth interest and T. R. Redwine an undivided one-fourth interest in said lands. This Respondent and Cross-Complainant further prays that the alleged deed from R. C. Redwine to W. K. Redwine dated July 5, 1939 and recorded in Book 126 of deeds page 486 and again recorded Book 131 pages 550 and 551 of deeds, in the office of the Judge of Probate of Colbert County, Alabama, be declared null and void and constitutes a cloud on this Respondent’s title and that the Register of this Court be ordered and directed to enter on each of the recordings of said deed that the same has been declared null and void by the decree of this Court.”
The complainant, W. K. Redwine, answered the cross bill of the respondent Lenora Redwine Jackson by denying the averments of the said cross bill.
The respondent, T. R. Redwine, in his answer, admitted the averments of the bill as amended in so far as it averred his interest in the suit property, but denied the averments as to the interest in the property owned by the complainant, W. K. Red-wine.
So, under the pleadings, it was admitted that the complainant and each of the respondents owned an undivided one-fourth interest in the suit property, which they had inherited from their father, Mark Red-wine, subject to the dower and homestead rights of their stepmother, Mollie Red-wine.
The real controversy was between the complainant, W. K. Redwine, and his sister, the respondent, cross-complainant, Lenora Redwine Jackson. The subject of the controversy wat. the undivided one-fourth interest in the suit property which their brother, R. C. Redwine, had inherited *569from their father, subject to their stepmother’s dower and homestead rights.
The complainant claimed ownership of that undivided one-fourth interest, except the oil and mineral rights, by virtue of a conveyance from his brother, R. C. Red-wine, under date of July 5, 1939.
The respondent Lenora Redwine Jackson sought to show that no such conveyance was executed; that at the time of his death, their brother, R. C. Redwine, still owned the interest in the 960 acres which he had inherited from his father; that such interest under the terms of the will of the said R. C. Redwine went to his wife, Lela Redwine; that the said Lela Redwine, as the devisee of her deceased husband, received one-fourth of the 640 acres as a result of the 1939 partition proceedings; that the said Lela Redwine died testate owning the same interest in the 320 acres here involved as her husband, R. C. Redwine, had owned; that under the terms of the will of Lela Redwine this interest went to her mother, Mrs. Bobbie Ware, for life, with remainder to Lela Redwine’s brothers, Richard T. Ware and George Willard Ware; that on November 4, 1943, the mother and brothers of Lela Redwine conveyed to the respondent Lenora Redwine Jackson “the interest of R. C. Redwine, deceased, in the estate of his father, Mark D. Redwine and which interest R. C. Redwine devised to his wife, Lela E. Redwine, now deceased, and she, in turn, devised to the grantors herein.”
The material parts of the decree of the trial court may be summarized as follows: (1) that the complainant and the respondents were tenants in common of the suit property; (2) that each of the three parties to the suit owns an undivided one-fourth interest in the suit property by virtue of- inheritance from their deceased father, Mark Redwine; (3) that the respondent, cross-complainant, Lenora Jackson, is also the owner of the undivided one-fourth interest in the suit property which was inherited by her deceased brother, Rufus C. Redwine, from his father, Mark Red-wine, and devised by Rufus C. Redwine to his wife, Lela E. Redwine, and devised by Lela E. Redwine to her mother, Mrs. Bobbie Ware, for her life, with remainder to her brothers, Richard T. Ware and George Willard Ware, and conveyed by Mrs. Bobbie Ware, Richard T. Ware, and George Willard Ware to the respondent Lenora Redwine Jackson; (5) that the purported deed or contract from said R. C. Redwine to W. K. Redwine dated July 5, 1939, and recorded in the office of the probate judge of Colbert County, be annulled, cancelled and held for naught in so far as it constitutes a cloud on the title of Lenora Redwine Jackson, in and to the undivided interest formerly owned by R. C. Redwine, which the said R. C. Redwine procured by inheritance from his father, Mark Redwine.
From the decree against him the complainant, W. K. Redwine, has appealed to this court. The eight assignments of error may be grouped as follows: (1) that the trial court erred in holding that the respondent Lenora Redwine Jackson, and not the complainant, W. K. Redwine, is the owner of the undivided one-fourth interest in the suit property formerly owned by their brother, R. C. Redwine, deceased; (2) that the trial court erred in annulling and holding for naught, in so far as it constitutes a cloud on Lenora Jackson’s title, the instrument which complainant contends his brother, R. C. Redwine, executed on July 5, 1939, purporting to convey bis undivided one-fourth interest in the suit property to the complainant, and in ordering that said instrument be cancelled of record.
The evidence was not taken orally before the trial court; hence we indulge no presumption as to findings of fact. It is our duty to sit in judgment on the evidence. Butler v. Guaranty Savings & Loan Association, 251 Ala. 449, 37 So.2d 638.
In sitting in judgment on the evidence in this case, we are confronted with the problem of ascertaining that part of the evidence offered, which, under existing laws, we may consider in determining the rights of the parties under the pleadings.
The complainant, testifying in his own behalf, gave evidence as to transactions with and statements by his deceased brother, R. C. Redwine, including the statement that he saw his brother execute the instru*570ment under which he now claims his brother’s interest in the suit property, and that he saw two witnesses subscribe their names to the instrument.
There are two questions which must be answered relative to this line of testimony of the complainant: First, was he competent to testify thereto ? Second, if incompetent, must we nevertheless consider his testimony because of the failure of the trial court to expressly rule on objections interposed by counsel for the respondent, Lenora Redwine Jackson?
The complainant was not a competent witness as to this line of testimony, in view of the provisions of § 433, Title 7, Code 1940, which section reads as follows: “In civil suits and proceedings, there must be no exclusion of any witness because he is a party, or interested in the issue tried, except that no person having a pecuniary interest in the result of the suit or proceeding shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding, or when such deceased person, at the time of such transaction or statement, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced, unless called to testify thereto by the party to whom such interest is opposed, or unless the testimony of such deceased person in relation to such transaction or statement is introduced in evidence by the party whose interest is opposed to that of the witness, or has been taken and is on file in the cause. No person who is an incompetent witness under this section shall make himself competent by transferring his interest to another.” (Emphasis supplied)
Appellant, complainant below, insists that the provisions of § 4-33, Title 7, supra, do not operate to make him an incompetent witness as to transactions with and statements made by his deceased brother which bear upon the execution of the deed under which complainant claims, for the reason that the estate of the deceased is no longer interested in the outcome of the suit. True, the respondent — cross-complainant—Lenora Redwine Jackson, claims under purchase from the mother and brothers of Lela Redwine, who were the devisees under the will of the said Lela Redwine, who in turn was the devisee under the will of R. C. Redwine, deceased. But this does, not remove the bar of the statute. We have held in several cases that the bar or rule of exclusion applies to protect those-claiming in succession to the deceased the same as to the estate of the deceased, when the other conditions exist. It is obvious, of course, that those conditions do exist. Federal Land Bank v. Curington, 233 Ala. 263, 171 So. 361; Goodgame v. Dawson,, 242 Ala. 499, 7 So.2d 77, and cases there cited. See also Niehuss v. Ford, 251 Ala. 529, 38 So.2d 484.
As before indicated, although the complainant was an incompetent witness as to-this kind of testimony, we are still confronted with the question as to whether or not we must consider that portion of his testimony on this appeal.
Section 372(1), Title 7, Code 1940, 1947' Cum. Pocket Part, Vol. Two, p. 44, provides in substance that in cases such as this it is unnecessary that objection be made to any testimony or evidence which may be offered by either party and on-the consideration of such cases the trial court should consider only such testimony as is relevant, material, competent and legal, and on appeal this court shall consider only such testimony as is relevant,, material, competent and legal, unless specific objection was interposed and a ruling made on such objection by the trial court-Pollard v.-Simpson, 240 Ala. 401, 199 So. 560.
Section 372(1), Title 7, Code 1940, is practically in the language of Act "No. 101, approved June 8, 1943, General Acts 1943,, p. 105. The 1943 act, supra, is in most material respects in the language of § 6565',. Code of 1923, the provisions of which were not brought forward in the Code of' 1940. The language of the 1943 act, supra,, is somewhat broader than that of § 6565,, Code 1923.
In the instant case, counsel for LenoraRedwine Jackson objected to this line of testimony by the complainant at the time *571the evidence was elicited on the ground that he was an incompetent witness in that respect. Written objections were filed, which were included in the note of testimony or note of submission. However, the trial court did not specifically rule ■on those objections, but the decree of the trial court contains language indicating that it • considered only legal evidence.
Since the trial court did not rule on the objections interposed by counsel for the appellant, must we on this appeal consider that evidence? This question is provoked by the decision of this court in the case of Warner v. Warner, 248 Ala. 556, 28 So.2d 701, and the decision in Crum v. Crum, 253 Ala. 163, 43 So.2d 392.
In Warner v. Warner, supra, a majority ■of the court held in substance that the statute regulating practice in equity cases, § 372(1), Title 7, Code 1940, in matter of objection to and consideration of evidence, does not relieve parties from making specific objections to the competency of witnesses who are incompetent to testify as to transactions with and statements by a deceased person. It was there said: “The testimony of Mary A. Warner and the exhibits thereto which we have noted ■above and the other exhibits offered by the respondent 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 lit in the case at bar by failing to object to the competency of the witness called to testify against them by their adversar)''. 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 objections 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. 184, § 252, p. 372, § 490; 28 R.C.L. p. 448, § 35; 20 Am. Juris, p. 246, § 253.” 248 Ala. 563, 28 So.2d 707.
The writer concurred in the dissenting opinion of Chief Justice Gardner, which was to the effect that the provisions of the 1943 act, supra, have application to the testimony of a witness who is incompetent to testify because of the provisions of § 433, Title 7, supra. However, the writer has followed the holding of the majority in the case of Warner v. Warner, supra, in this respect in the case of Adams v. Griffin, 253 Ala. 371, 45 So.2d 22.
The case of Crum v. Crum, supra, followed and extended the rule in the holding of Warner v. Warner, supra. In the Crum Case objections were made as to the competency of a witness as to statements made by a deceased because of the witness’s pecuniary interest in the result of the suit. These objections were filed before the submission of the cause and called to the attention of the court by being referred to in the note of testimony. However, no ruling on such objections was made by the court and it was held that for that reason the testimony of the alleged incompetent witness had to be considered by us. The writer concurred in that opinion.
We are now fully convinced, after mature consideration, that the holding in Warner v. Warner, supra, pointed out above, is erroneous and that it and those cases which have followed it should to that extent be no longer followed.
None of the cases relied upon in the majority opinion in Warner v. Warner, supra, support the conclusion there reached as to the point now under consideration.
The case of Rogers v. Austill, 213 Ala. 163, 104 So. 321, does hold that the sole owner of an estate left by a decedent is the only person interested 'in the rule of exclusion and may waive it. It was held that there was a waiver in that case, but not because of a failure of an objection, but because the only person interested in the rule of exclusion conceded complain*572ant’s right to relief. In fact, she confessed the bill and even went so far as to suggest to this court that the decree dismissing the bill should be reversed to the end that appellant, complainant below, might have the relief to which, in her opinion, he was entitled.
The cases of Hendricks v. Kelly, 64 Ala. 388, and Butler v. Jones, 80 Ala. 436, 2 So. 300, both held that the so-called “dead man’s statute” had no application to the witnesses claimed to be incompetent. The decisions in those cases did not in any wise deal with the necessity of objections and rulings thereon, and in fact were decided long before there were any such provisions as are now found in § 372(1), Title- 7, Code 1940. We might observe at this point that the provisions of § 6565, Code 1923, § 372(1) Title 7, Code 1940, supra, first appeared 'in an act approved September 28, 1923, General Acts 1923, p. 631.
The case of Des Portes v. Hall, 238 Ala. 641, 192 So. 899, involved a 'bill filed by an existing creditor to vacate a deed to lands made by the debtor to his wife and son and to subject the lands to the payment of the debt, alleging the recited consideration was simulated, that in fact the conveyance was voluntary, without valuable consideration. The main argument presented on the appeal was that the answer to the bill was insufficient to present the issue of valuable consideration; that proof without averments would not sustain the defense as against the prima facie case made by the bill, supported by proof of the claimant’s existing indebtedness to complainant. In part we said:
“There was no exception to the answer. Our Chancery Rule 34 eliminates exceptions to unsworn answers.
“Neither was there objection to any of the testimony, calling attention to any defect in the answer.
“Our Statute, Code, § 6565 [Code 1923], requiring the court in equity causes to ‘consider only such testimony as is relevant, material and competent’ is not intended to strike out evidence subject to objection only on special grounds. Where, as here, the answers sets forth in substance a complete defense and is objectionable only for lack of fulness and clearness in matters of detail, the trial court will not be put in error where no objection to pertinent evidence was interposed, nor the court otherwise apprised of the point first raised on appeal.” 238 Ala. 645,192 So. 901.
The above quotation is the only reference-in that opinion to § 6565 of the Code of 1923- and there was no question in that case as to the incompetency of a witness to testify because of the provisions of § 7721, Code of 1923, the “dead man’s statute.”
Neither the majority nor the dissenting opinion in the case of Warner v. Warner, supra, makes any reference to several cases which had been previously decided' by this court, which clearly show that this court had construed the provisions of § 6565, Code 1923, as applicable to testimony given by a witness who was incompetent because of the provisions of § 7721, Code 1923, the “dead man’s statute.” There are-at least two cases decided since the effecttive date of the 1943 act, § 372(1), Title 7, Code 1940, and prior to the decision in the Warner Case, which definitely demonstrate that this court considered the provisions of the 1943 act, supra, as applicable to a witness incompetent to testify because of the provisions of the so-called “dead man’s, statute,” now codified as § 433, Title 7,. Code 1940.
The case of Moore v. Moore, 212 Ala.. 685, 103 So. 892, was decided in 1925. In-an opinion prepared for the court by Mr. Justice Sayre, it clearly appears that this court considered the provisions of § 6565',. Code 1923, as being applicable to a witness incompetent to testify because of the provisions of § 7721, Code 1923, supra. It was there said:
“Appellant insists that appellees, Mexico Moore and her children, are incompetent to testify in this cause by reason-of section 7721 of the present Code, section 4007 of the Code of 1907. The rule-of the section does not operate to close-the mouth of a witness as to any matter of fact coming to his knowledge in any other way than through personal dealings with the deceased or communications made by the deceased to the witness in person. Warten v. Black, 195 Ala. 97, 70 So. 758. *573This rule does not exclude evidence of acts of possession. Again noting the fact that the issue in this cause is whether the deeds under which the parties claim correctly represent the transaction between the grantor, I. W. Moore, and his sons, the rule of exchision on account of pecuniary interest would operate to take out of consideration, not only parts of the testimony of Mexico Moore, but also the most material part of appellant’s testimony, to wit, that part of it in which he states a transaction between his brother and himself in and by which, as he says, the dividing line between them was agreed upon, and, while there were no specific rulings on evidence, the statement of the trial court is that competent evidence only was considered. This method of consideration was in accord with the prescription of section 6565 of the C.ode, and so the cause must be considered on this appeal." (Emphasis supplied) 212 Ala. 686, 103 So. 893.
In Milton Realty Co. v. Wilson, 214 Ala. 143, 145, 107 So. 92, 93, it was said, in part, as follows: “The testimony sought to he elicited from Tribble as to his transaction with Stewart, the agent and attorney of complainants, after the death of Stewart, is protected by the provisions of section 7721 of the Code of 1923. - * * * No objection to the evidence was required by the statute. Code, section 6565; Moore v. Moore, 212 Ala. 685, 103 So. 892; * * * ” (Emphasis supplied)
In Copeland v. Warren, 214 Ala. 150, 107 So. 94, such construction appears from the following statement in the opinion: “Assignment of error is predicated upon the assumption that the trial court considered illegal testimony in reaching the conclusions expressed in the final decree. There is evidence to sustain the decree, aside from the depositions of complainant, L. P. Warren. And, in view of the provision of section 6565 of the Code of 1923, the reviewing court zvill presume that the trial court follozved the statute. * * * ” (Emphasis supplied) 214 Ala. 154, 107 So. 97.
The contention was that the complainant, Warren, was an incompetent witness because of the exclusion provisions of § 7721, Code 1923.
The case of Patterson v. Johnson, 225 Ala. 401, 143 So. 560, was a bill in equity by Patterson and others against Johnson and others. The purpose of the bill was to have lands sold for division of the proceeds among tenants in common. The alleged tenants in common were the heirs at law of Thomas and Eliza Patterson, deceased. The respondent Johnson claimed title to 120 acres of the 180-acre tract involved by virtue of a deed from Thomas and Eliza Patterson. It was because of that claim that he was made a party respondent and as to him the bill sought to quiet title. The respondent Johnson, by answer and cross-bill, set up his claim to an absolute title to the 120-acre tract. There was a decree for the cross-complainant, Johnson. The complainants appealed.
Johnson, as a witness, was permitted to testify as to a transaction with the deceased. There were objections to his competency as a witness to such transaction with deceased persons whose estate was interested. Such objections were noted in the submission. It does not appear that there was any ruling on such objections.
That this court did not consider such objections necessary is clearly demonstrated by the following language of the opinion: “Disregarding this testimony as illegal, the competent evidence fully warranted the decree rendered for reasons above stated. Code, § 6565.” (Emphasis supplied) 225 Ala. 402, 143 So. 561.
That this court considered the provisions of § 6565 of the Code of 1923 to be applicable to thte testimony of a witness incompetent to testify under the provisions of § 7721 of the Code of 1923 is clearly and definitely shown by the following quotation from the case of O’Rear v. Kimbro, 227 Ala. 22, 24, 148 So. 435, 437: “There is in the record much testimony given by the complainants, O’Rear and Stubblefield, which was incompetent, and cannot be considered. Under the plain terms of section 7721 of the Code, the complcdnants — -mortgagors — having a pecuniary interest in the *574result of the suit,'could not testify as to ‘any transaction with, or statement by A. A. Pearce, whose estate was, and is, interested in the result of this suit.’ As was observed by Brickell, C. J., in Boykin v. Smith, 65 Ala. 294, 299: ‘If death has sealed the lips of one party, the law intends, as to this species of evidence, to .seal the lips of the living.’ Jemigan v. Gibbs, 206 Ala. 93, 94, 89 So. 196. And by section 6565 of the Code, it is provided that, in the trial of equity cases, the court shall consider only such testimony as is *relevant, material and competent, and shall exclude and not consider any testimony which is irrelevant, immaterial or incompetent, whether objection shall have been made thereto or not, and on appeal the supreme court shall consider only the testimony which is relevant, material and competent.’ ” (Emphasis supplied)
We have examined the original transcript in the case of O’Rear v. Kimbro, supra, and find that no objection was interposed or noted in the note of testimony as to the incompetency of the witnesses.
To like effect .is the case of Patterson v. First National Bank of Piedmont, 229 Ala. 406, 157 So. 446, written for the court by Mr. Justice Gardner, now Chief Justice. It was there said:
“Much evidence was offered, by each side, which was incompetent and illegal in the light of our statute. Section 7721, Code 1923.
“The chancellor gave full recognition to the statute, and the record shows that he disregarded such incompetent and illegal ■evidence, and rested his decision only upon the competent and legal evidence in the case. Section 6565, Code 1923; Mink v. Whitfield, 218 Ala. 334, 118 So. 559; Moore v. Moore, 212 Ala. 685, 103 So. 892.
“These witnesses were not incompetent, however, as to all the facts testified to by them, such as collateral matters npt involving a transaction with or a statement by the deceased. Moore v. Moore, supra.
“We have here also carefully considered ■only the competent and legal proof. * * ” 229 Ala. 409, 157 So. 448.
The case of Scott v. McGill, 245 Ala. 256, 16 So.2d 866, was decided in February, 1944. The notes of testimony on submission were filed subsequent to the approval of the 1943 act, supra, Acts 1943, p. 105, and it was held that the case on appeal was governed by that statute. One of the contentions was that certain witnesses who gave evidence were incompetent to testify because of the provisions of the “dead man’s statute.” It was held that they were incompetent to so testify. The opinion contains the following language : “The trial court made no ruling on evidence considered by him. To sustain his decree, this court may assume he considered only legal evidence.” 245 Ala. 259, 16 So.2d 868.
The case of Sansom v. Sturkie, 245 Ala. 514, 18 So.2d 267, was decided in May, 1944, only a comparatively short time prior to the decision in the case of Warner v. Warner, supra. The following quotation from the opinion is diametrically opposed to the holding in the case of Warner v. Warner, supra, which is here under consideration. “The final decree of August 9, 1943, was after the Code of 1940 became effective on May 31, 1941, which omitted Section 6565 of the Code of 1923, effecting its repeal. Askins v. State ex rel. Johnson, 244 Ala. 455, 14 So.2d 156. This statute was, however, reenacted by the legislature of 1943, p. 105, approved on June 8, 1943, Code 1940, Title 7, § 372(1), before the submission on August 5, 1943, for final decree. In the rendition of the instant decree the trial court, sitting in equity, was not required to pass upon the motion to exclude the illegal evidence of the complainants S'ansoms, but was under the statute confined to consideration of such testimony before him as was relevant, material, competent and 'legal, as to the transactions with the deceased by complainants, as to matters pertinent to this decision.” 245 Ala. 520, 18 So.2d 273.
There is no doubt that the holding in the Warner Case here involved is contrary to the legislative intent as well as to the rule which this court had consistently followed prior thereto. True, this court *575should do all within its power to follow a consistent' course. But where, as here, it is apparent that a holding which has been in the books only a comparatively short time is clearly wrong, and upsets a rule of long standing, we feel that this court should not hesitate to depart therefrom. We are fully convinced that the rule of the case of Warner v. Warner, 248 Ala. 556, 563, 28 So.2d 701, with which we are here concerned, - should be overruled and no longer followed. This, of course, applies to the few equity cases which have followed Warner v. Warner, supra, in this respect, which includes Adams v. Griffin, 253 Ala. 371, 45 So.2d 22; Crum v. Crum, 253 Ala. 163, 43 So.2d 392.
In view of the foregoing, we have not on this appeal considered that part of the testimony of complainant, W. K. Redwine, to which the exclusion provisions of § 433, Title 7, Code 1940 (“dead man’s statute”), have application.
We come now to consider the question as to whether there is any competent and legal evidence which shows a conveyance from R. C. Redwine to the complainant, W. K. Redwine, as alleged by complainant.
No such original conveyance was offered in evidence. Complainant testified that such a conveyance had been in his possession but that, in 1944 or 1945, while he was in a hospital in Memphis, Tennessee, the conveyance “disappeared.”
No competent witness testified in person at the trial of this case as to the execution of such a conveyance.
The complainant offered in evidence a certified transcript of a record of the probate office of Colbert County showing the recordation of an instrument, dated July 5, 1939, bearing the name R. C. Redwine, as grantor, which purported to convey to W. K. Redwine, for a consideration of $1250, the interest owned by R. C. Redwine in certain described property, including the suit property, except the oil and mineral rights therein.
Complainant claims that by virtue of the provisions of § 104, Title 47, Code 1940, such transcript was admissible in evidence without further proof of the execution of the conveyance, that is, it was self-proving. Section 104, Title 47, Code 1940, reads as follows: “Conveyances of property, real or personal, or any interest therein, whether absolute or on condition, which are acknowledged or proved according to law, and recorded, may be received in evidence in any court without further proof; and if it appears to the court that the original conveyance has been lost or destroyed, or that the party offering a transcript, had not the custody or control thereof, the court must receive the transcript, duly certified, in the place of the original, unless the reputed maker is in bona fide possession of the property, and makes and files an affidavit that the said conveyance is a forgery.”
The certified transcript shows that the purported conveyance above described was first filed for record on July 19, 1943. It bore no acknowledgment of the . grantor, but the names of C. M. Jenkins and J. K. Dean appeared thereon as witnesses. Since it was so witnessed, the purported conveyance complied in form with § 22, Title 47, Code 1940, which relates to conveyances-of real estate. Turk v. Turk, 206 Ala. 312, 89 So. 457.
Although in sufficient compliance with § 22, Title 47, supra, it was not self-proving at the time it was recorded on July 9, 1943, because there was no acknowledgment of the grantor, nor was it “proved according to law.” Conveyances are not self-proving by reason of recordation unless acknowledged or proved according to-law. Section 104, Title 47, Code 1940; Niehuss v. Ford, 251 Ala. 529, 38 So.2d 484.
But the certified transcript further shows, that the purported conveyance was re-recorded on January 9, 1945, and as re-recorded the transcript shows the following certificates of probate, which are in the■ form prescribed by § 31, Title 47, Code-1940:
“State of Florida Dade County
“I, Evelyn McClure, a Notary Public in- and for said state and county, hereby certify that C. M. Jenkins, a subscribing witness. *576to the foregoing conveyance, known to me, appeared before me on this day and being sworn, stated that R. C. Redwine, the grantor, voluntarily executed the same in his presence, and in the presence of the other subscribing witness, on the day the same bears date; that he attested the same in the presence of the grantor and the other witness, and that such other witness subscribed his name as a witness in his presence.
“Given under my hand this the 3 day of January 1945.
Evelyn McClure, Notary Public My commission expires April 5, 1945”
“Seal
“State of Florida Duval county
“I, Wiley Pope, a Notary Public in and for said State and County, hereby certify that J. K. Dean, a subscribing witness to the foregoing conveyance, known to me, appeared before me on this day, and being sworn, stated that R. C. Redwine, the grantor, voluntarily executed the same in his presence, and in the presence of the other subscribing witness, on the day the same bears date; that he attested the same in the presence of the grantor and of the other witness, and that such other witness subscribed in his name as a witness, in his presence.
“Given under my hand this the 2nd day of January, 1945.
Wiley Pope Notary Public
“Seal
“Notary Public, State of Florida at Large. My commission expires Sept. 28, 1948. Bonded by American Surety Co. of N. Y.”
Appellee, Lenora Redwine Jackson, contends that the purported conveyance was not proved according to law and that, therefore, the certified transcript was not admissible without further proof of the execution of the said conveyance. Her argument is that, although a seal appears on each of the certificates of probate, that, since the certificates purport to have been executed in the State of Florida by notaries public of that state, they are in-efficacious to make the instrument self-proving because the purpose of the notary to affix his seal does not appear in his certificate, nor does he certify that the seal is or was his official seal, or that it was so affixed or made by him as such notary.
In support of this contention reliance is had upon the case of Dawsey v. Kirven, 203 Ala. 446, 83 So. 338, 7 A.L.R. 1658. In that case is appears that Kirven, the holder of negotiable promissory notes, brought suit against Dawsey and others, the makers thereof. The defendants pleaded the general issue and a special sworn plea denying plaintiff’s ownership of the notes. There was judgment for plaintiff, from which defendants appealed. It was contended by the appellants that the trial court erred in admitting into evidence a power of attorney purporting to have been executed by one Mrs. M. F. Clements to one F. D. Kirven, the husband of plaintiff, authorizing him, as her agent and attorney, to make loans, collect monies, satisfy mortgages of record, assign and endorse notes, mortgages, etc. The reason urged as to why the admission in evidence of the power of attorney was error was that the notary’s certificate or acknowledgment of the execution of the power of attorney was not authenticated by the notarial seal of the officer, he being an officer of another state, to wit, Georgia, and the acknowledgment and certificate being made in that state. On original submission it was thought to be unnecessary to consider that question. The judgment of the trial court was affirmed. On rehearing, it was held that such question was necessary to a determination of the case and it was further held that the trial court erred in admitting the power of attorney in evidence, the application for rehearing was granted, and the judgment reversed. The basis for this holding is shown in the following quotation from the opinion written on rehearing:
“It is insisted that, the power of attorney being executed in tile state of Georgia, it was not self-proving. The execution of the power of attorney purports to be under the seal of the grantor, and purports to be acknowledged before a notary in the state of Georgia; and a notarial seal or scroll appears on the instrument. But the *577acknowledgment of the notary does not refer to the seal, nor does he certify that it was given ‘under his seal,’ official or otherwise, but only that it was given under ‘his hand.’ The question therefore is presented: Was the execution of the instrument sufficiently proven by the acknowledgment of a foreign notary under his official seal? In other words, was the acknowledgment before a notary properly and legally authenticated by his official seal? While there is on the instrument what purports to be a seal, the notary does not certify that it is his official seal, and makes no reference whatever to it either in the body of the certificate or in the jurat thereof, but the certificate purports to be under ‘his hand’ only, but not under ‘his seal.’
“Under our decisions we feel compelled to hold that the power of attorney was not self-proving. The notary’s certificate was not attested by his official seal. While this court has repeatedly held that instruments the execution of which were acknowledged before foreign notaries, whose certificates of acknowledgment were attested by official seals, were self-proving, yet we have never held that affixing a mere scroll or wafer, purporting to be a seal, without any reference thereto by the officer in the body of his certificate, or in the jurat thereof, was sufficient authentication to make it self-proving. See Hart v. Ross, 57 Ala. 518, 520; Alabama Nat. Bank v. Chattanooga Door & Sash Co., 106 Ala. 663, 18 So. 74; Goree v. Wadsworth, 91 Ala. 416, 8 So. 712; Hill v. Norris, 2 Ala. 640; Toulmin v. Austin, 5 Stew. & P. 410.
i¡í ifí íjí ^ sf«
“We therefore hold that the purpose of the notary to affix his seal must appear in his certificate; otherwise the scroll or impression purporting to be a seal may have been placed on the document by another, and without the knowledge or official act of the notary. In other words, we, or the trial court, are not authoritatively informed that the certificate of acknowledgment of the foreign notary was by him authenticated by 'his official seal. There is no certificate that the scroll or impression is or was his official seal, or that it was so affixed or made by him as such notary.
“It therefore results that it was error to admit the power of attorney in evidence, and the judgment below should be reversed. The application for rehearing is therefore granted, the judgment of affirmance set aside, and one of reversal rendered.” 203 Ala. 449, 83 So. 340.
But appellant argues that the rule of Dawsey v. Kirven, supra, which case was decided in 1919, is not controlling in the instant case because of the provisions of § 28, Title 47, Code 1940, which provisions were new to the Code of 1923, and were incorporated therein as § 6843. Section 28, Title 47, supra, reads as follows:
“All deeds, powers of attorney, and other instruments of conveyance, affidavits or contracts purporting to be acknowledged, proved or verified as prescribed by law, and which have been recorded- or may-hereafter be recorded, in the office of the judge of probate of the proper county in this state, and transcripts thereof from such record, shall be prima facie evidence that the seal of such officer acknowledging or attesting such instrument was his official seal, and that it was affixed by him in his official capacity; and all such instruments and certified copies thereof shall have the same force and effect and shall be received in evidence in any court in this state without further proof of the due execution of such instrument or proof of the seal of any officer so certifying or attesting, and that the same was affixed by him as his official seal, in his official capacity, whether he be an officer of this state, or of any other state, .territory or district of the United States.”
The language of the section quoted above is clear and unambiguous and seems to make the rule of Dawsey v. Kirven, supra, inapplicable as to instruments of the kind named in the section which have been recorded properly.
In the instant case, a seal was affixed to each of the certificates of probate. So, under the express language of § 28, Title 47, supra, the transcript of *578the records of the probate office of Colbert County, showing that a seal was affixed to the certificates, is prima facie evidence that the seal was that of the notary public and that it was affixed by him in his official capacity.
In briefs filed here on behalf of appellees, it is strenuously argued that although the language of § 28, Title 47, supra, seems to lead to the conclusion which we have reached above, that this court has refused to so construe that section in two cases, namely, Knight v. Hill, 212 Ala. 280, 102 So. 221, and Copeland v. Dabbs, 221 Ala. 489, 129 So. 88. We have given careful consideration to the opinions of this court, as well as to the original transcripts, in those cases and are clear to the conclusion that the holdings in those cases did not turn on the provisions now codified as § 28, Title 47, Code 1940.
The case of Knight v. Hill, supra, was decided by this court on December 4, 1924. The 1923 Code went into effect on August 17, 1924. Section 6843, Code 1923, was in the exact language of what is now § 28, Title 47, Code 1940. But the provisions of § 6843, Code 1923, had no application to the question considered in Knight v. Hill, supra, for the reason, if for no other, that the judgment from which the appeal was taken to this court was rendered and entered prior to the time the 1923 Code went into effect. As before indicated, the provisions of § 6843, Code 1923, were new to that Code. But § 6843, Code 1923, is based on the provisions of Act No. 82, approved October 5, 1920, General and Local Acts, Special Session, 1920, p. 135. In codifying the provisions of the said 1920 act, the Code Commissioner broadened its scope. The 1920 act was in effect at the time rights of the parties in Knight v. Hill, supra, became fixed. However, the 1920 act, supra, had application only to “deeds and other instruments of conveyance.” The instrument involved in the case of Knight v. Hill was a claim or statement, filed in the office of the probate court of Randolph County, for the purpose of establishing a mechanic’s lien, which claim was purported to have been certified by a notary public of the state of Georgia. It is clear, therefore, that the provisions of the said 1920 act, supra, had no application. In holding that the statement or claim was improperly admitted in evidence, the court followed the rule of Dawsey v. Kirven, supra, which rule was not affected by • the said 1920 act, supra, except as to “deeds and other instruments of conveyance, acknowledged or proved as prescribed by sections 3361, 3362 and 4161 of the Code of Alabama of 1907 before and by officers named in section 3359 of the Code of Alabama of 1907 beyond the State of Alabama, but within the United States, heretofore executed and which have been recorded in the office of the judge of probate of the proper county in this State, before the passage of this Act or within two years after the approval thereof, * * Act No. 82, approved October 5, 1920, General and Local Acts, Special Session, 1920, p. 135.
In Copeland v. Dabbs, supra, decided in 1930, a majority of the court held that the instrument put in evidence and upon which the complainant’s right to recover depended, “showed a valid deed, provable, though not self-proving.” [221 Ala. 489, 129 So. 92] An acknowledgment of one of the grantors had been taken before an Arkansas notary public. This acknowledgment was witnessed in this language, “I hereunto set my hand.” True, it does not appear that any reference was made in the notary’s certificate of his purpose to affix a seal. In fact, it does not appear that a seal was affixed and, furthermore, it does not appear that the deed was recorded. It follows, therefore, that the deed could not have been held to be self-proving under the provisions of § 6843, Code 1923, now § 28, Title 47, Code 1940.
In Autauga Co-operative Leasing Ass’n v. Ward, 250 Ala. 229, 33 So.2d 904, the case of Dawsey v. Kirvin, 203 Ala. 446, 83 So. 338, is cited in support of the following statement: “The instrument must declare in its body that its corporate seal is affixed to make the seal effectual.” 250 Ala. 234, 33 So.2d 908. We were there dealing with the sufficiency of an assignment of a lease purported to have been made by a corporation acting through its agent. We point out that the question as *579to whether or not the instrument was self-proving under the provisions of § 28, Title 47, Code 1940, was not involved.
We hold that no defect appears on the face of the certificates of probate such as to require a holding that the conveyance was not proved according to law, and that, therefore, the certified transcript was admissible in evidence without further proof of the execution of the conveyance. Sections 28, 31, 104, Title 47, Code 1940.
Appellee insists that although the certificates of probate may appear on their face to have been properly executed so as to make the transcript admissible in evidence without further proof of the execution of the deed, it appears that the certifying officers, the Florida justices of the peace, did not have jurisdiction in that the evidence shows that the deed was not before the notaries public and the alleged witnesses at the time the certificates were executed.
We think that the act of executing a certificate of probate is the exercise of a judicial function, but, like a certificate of acknowledgment it may be impeached as a fabrication where the certifying officer did not have jurisdiction of the party or subject matter. Fies & Sons v. Lowery, 226 Ala. 329, 147 So. 136, and cases cited. But much weight must be accorded to the certificate and it should only be set aside by evidence that is clear and convincing. Fies & Sons v. Lowery, supra.
The certificates of probate with which we are here concerned are to the effect that the deed was before the notaries public and each of the affiants at the time the certificates were executed. We do not think it necessary to set out the evidence upon which appellee, Lenora Redwine Jackson, relies to impeach this statement contained in the certificates. Suffice it to say that such evidence has received careful consideration in consultation and we are clear to the conclusion that it is not sufficient to overcome the weight which must be accorded to an official certificate of this character under the rule of our cases.
We have likened a certificate of probate to a certificate of acknowledgment in the respect that the act of taking is the .exercise of a judicial function. But we think they are different in their effect.
It has been held by this court in regard to acknowledgments that when the certifying officer acquires jurisdiction by having the grantor and the instrument to be acknowledged before him, and then exercises his jurisdiction thus acquired, the resulting certificate is conclusive of the truth of all those facts therein stated, which the officer is by law authorized to state, until successfully assailed for duress or fraud, participated in by the grantee or brought to his notice when parting with the consideration. Fies & Sons v. Lowery, supra, and cases cited.
Parol evidence is only admissible to show, first, the absence of jurisdiction to take the acknowledgment in question in the concrete case; and, second, that fraud or duress affected the process of giving and taking the acknowledgment. Butler v. Hill, 190 Ala. 576, 67 So. 260. A grantor who has gone before a 'notary and acknowledged his signature to a conveyance cannot show by parol evidence that in fact he did not execute the conveyance, there being no fraud or duress shown, for the certificate of acknowledgment is conclusive of the execution. Butler v. Hill, supra. A married woman who has executed a separate acknowledgment in proper form cannot show by parol evidence, in contradiction of the certificate of acknowledgment, that her husband was present at all times or that she was not asked whether she signed the mortgage of her own free will and accord. Moore v. Bragg, 212 Ala. 481, 103 So. 452.
We think the certificate of probate is also conclusive of the truth of all the facts therein stated, where the certifying officer had jurisdiction, and that such a certificate can be impeached as to the truth of the facts therein stated only for fraud and duress.
However, there is this distinction between a certificate of acknowledgment and a certificate of probate. In the case of a certificate of acknowledgment the grantor has appeared before the officer and *580admitted the execution of the conveyance. But in a certificate of probate, such as is involved here, it is the alleged witness to the instrument who appears before the certifying officer and swears, in substance, that the grantor voluntarily acknowledges the conveyance in his presence, and in the presence of the other subscribing witness.
The alleged grantor is not thereby prevented from showing by parol evidence or otherwise that the alleged subscribing witness swore falsely before the certifying officer. Nor can those who claim under the purported grantor be prevented from showing that the alleged witness swore falsely in the certificate of probate. In other words, a certificate of probate is not conclusive of the fact that the grantor did execute the conveyance as alleged by the affiant in the certificate.
We come now to consider the evidence offered upon which appellee, Lenora Red-wine Jackson, bases her contention that the alleged subscribing witnesses did swear falsely.
There is no direct evidence to support such contention. In other words, no witness testified that R. C. Redwine did not execute the conveyance as stated in the certificates of probate.
However, we are constrained to the conclusion that the decree of the trial court is correct and should be affirmed.
The evidence shows that although the complainant claims that on July 5, 1939, he obtained, by virtue of the afore-mentioned conveyance, all the interest which his brother, R. C. Redwine, had in the estate of their deceased father, Mark Redwine, except oil and mineral rights, and that he had the deed in his possession and in his pocket at the time the partition proceedings were held in the Fall of 1939, wherein one-fourth of 640 acres was set aside to the widow of R. C. Redwine, he asserted no claim to the interest which the said R. C. Redwine had inherited. It is inconceivable to us that the complainant would have sat idly by and permitted such a large portion of his property to go to another if in fact he had a conveyance thereto. Complainant gives no satisfactory explanation as to why he did not then assert his rights under the alleged deed.
Another significant fact is that the evidence shows that shortly after the partition proceedings were completed, the complainant went into bankruptcy and that he did not list among his assets the interest which he now claims to have acquired from his brother in the suit property by virtue of the aforementioned conveyance.
We have reviewed with great care the evidence which we are permitted to consider under the existing law affecting the review of cases of this kind, and are forced to the conclusion that the weight of the evidence shows that no such conveyance was executed by R. C. Redwine on July 5, 1939, as contended by complainant. We hold, therefore, that the trial court correctly decreed that the appellee, Lenor Redwine Jackson, is the owner of the one-fourth undivided interest in the suit property formerly owned by R. C. Redwine and that the purported conveyance from R. C. Redwine, under date of July 5, 1939, to W. K. Red-wine be cancelled of record.
The decree is affirmed.
Affirmed.
FOSTER, LIVINGSTON, and STAKELY, JJ., concur. BROWN and SIMPSON, JJ., dissent.