Opinion
6 Div. 918.
June 5, 1919. Rehearing Denied June 30, 1919.
Appeal from Circuit Court, Blount County; Woodson J. Martin, Judge.
Russell Johnson and James Kay, all of Oneonta, for appellants.
Calhoun Sons, of Oneonta, for appellees.
The complainants owned only a reversionary interest in the real estate here in controversy, and the outstanding life estate is an obstacle or impediment in the way of the assertion by complainants of their legal rights, and therefore — although out of possession — they have a right to maintain this bill to remove the cloud from their title in reversion. It is quite clear that the bill has equity, and the demurrer was properly overruled. Fies v. Rosser, 162 Ala. 504, 50 So. 287, Mitchell v. Baldwin, 154 Ala. 346, 45 So. 715.
It is insisted by appellees, and was so ruled in the court below, that the witnesses John W. Wall and H. P. Wall, although parties to the suit, were not incompetent to testify under the circumstances outlined in the foregoing statement of the case, under section 4007 of the Code of 1907. Wood v. Brewer, 73 Ala. 259; Miller v. Cannon, 84 Ala. 59, 4 So. 204. While appellants insist that, under the authority of Blount v. Blount, 158 Ala. 242, 48 So. 581, 21 L.R.A. (N.S.) 755, 17 Ann. Cas. 392, McDonald v. Harris, 131 Ala. 359, 31 So. 548, Napier v. Elliott, 152 Ala. 248, 44 So. 552, and other authorities, such witnesses were incompetent to testify. We pass the question by as being unnecessary to be here determined, as other witnesses — the admissibility of whose testimony is not questioned — testified to like effect, and this evidence was strongly corroborated, and to our minds sufficiently convincing. After a careful consideration of this evidence (placing aside, for the moment, that here attacked), we are persuaded the complainants have made out a case entitling them to the relief sought. We do not consider a discussion of the evidence necessary. It has been most carefully considered, and we are persuaded that the court below reached the correct conclusion, and that his decree should be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.