Applying the law of this case as declared in Walsh v. Bank of Moundville, 222 Ala. 164, 132 So. 52, the plaintiff, not the defendant, on the undisputed facts, was entitled to the affirmative charge. The testimony *Page 196 of the witness Griffin was purely hearsay. Moreover, Walsh positively denied that he made any such statement to Owens. In the face of this denial, the hearsay testimony did not create a conflict in the evidence.
Conceding that such statement, as is attributed to Walsh by the hearsay testimony of Griffin, would be admissible as a declaration against interest, it would have to be proved by one who heard the statement, and not by hearsay.
Walsh at the time of the alleged statement was the administrator of Kelly, the deceased mortgagee, and is not now, and never has been, a party to this suit. Griffin, dealing for the defendant bank in respect to the rights of the mortgagee's estate, was charged with the limitations of the authority of Walsh as administrator and statutory trustee. First Nat. Bank of Birmingham v. De Jernett, 229 Ala. 564, 159 So. 73.
GARDNER, J., concurs in the foregoing.