#### McCall *v.*Hall.

*Bill to Enforce Vendor's Lien.*

(Decided April 17, 1913.

62 South. 68.)

1. *Appeal and Error; Revieio; Questions Not Raised Below.*— The sufficiency of the plea of usury cannot be raised for the first time on appeal.

2. *Same; Harmless Error; Pleading.*— Whether a plea of usury was sufficient or not, was immaterial where interest on the debt was eliminated and all the payments were credited on the principal.

3. *Witnesses; Competency; Deceased Person.*— Where a defendant’s wife had no pecuniary interest in a transaction between her husband and the intestate of plaintiff in which her husband had given plaintiff’s intestate a note for the price of real estate, she is competent to testify as to payments made on the note by or on behalf of her husband.

4. *Reference; Report on; Exceptions.*— Where a cause was referred to the Register to ascertain all payments made on the debt sued on, a paper omitting all notation of the evidence on which exceptions to the reports were based, was insufficient under rule 93, Ch. Pr., and sec. 3161, Code 1907.

Appeal from DeKalb Chancery Court.

Heard before Hon. W. H. Simpson.

Bill by S. A. McCall, as administrator, against J. D. Hall to enforce a vendor’s lien. Decree for complainant for insufficient relief, and he appeals.

Affirmed.

The paper alluded to is as follows: “Comes complainant and objects to the report of the register on reference, and assigns the following objections: (1) The sum of $125 allowed for the board of J. H. McCall should not have been allowed; (2) the sum of $285 should not have been allowed as a credit on said note; *192and (3) because tbe report of tbe register does not show tbe true and correct amount due on said purchase money note for $1,000. Isbell & Scott.”

Isbell & Scott, for appellant.

Defendant’s wife was not competent as a witness as she testified relative to a matter affecting tbe estate of complainant’s intestate. —Sec. 4007, Code 1907. Tbe plea of usury was insuffi*cient.*— Woodall *v. Kelly,*85 Ala. 368; Tyler on Usury, 458.

John A. Davis, for appellee.

Tbe testimony estab- ■ lisbes that tbe contract was usurious, and tbe exception to tbe register’s report was properly disallowed. — Sec. 4623, Code 1907; *Barclift v. Fields,*145 Ala. 264.; *Reynolds v. Lee,*60 South. 101.

McCLELLAN, J.

The appellee bought a tract of land from appellant’s intestate, giving him a promissory note for $1,000 as tbe purchase price thereof. After intestate’s death tbe note could not be found, but its original existence and amount are -not tbe subjects of dispute. Tbe administrator exhibited this bill against tbe grantee-payor, seeking tbe declaration and enforcement of a vendor’s lien for tbe unpaid purchase money. Tbe only matter of real controversy was tbe amount of tbe unpaid balance of tbe purchase money.

It appears from tbe evidence with satisfactory certainty that tbe note stipulated for usurious interest. There was a plea setting up *usury,*tbe sufficiency of which, as a plea of usury, does not appear to have been tested in tbe chancery court. Tbe argument against its sufficiency cannot be considered on this appeal, since tbe objection on that account was not first made in that court.

*193The result from the evidence supporting the substance of the plea (whether that pleading was deficient or not) Avas that the matter of interest on the debt was eliminated. Whatever payments were made served to diminish the principal of the debt.

On the issue of amount of the payments made, the Avife of the appellee was the chief witness, for appellee. Not having been shown to have any pecuniary interest in the transaction between , her husband and intestate, she was competent to testify in the *premises.*— Glover *v. Gentry & Moore,*104 Ala. 222, 229, 16 South. 38.

The report of the register, to whom the court referred the inquiry of the amount due by the defendant on the note, ascertained that there was a balance of $337.75. The credits, or offset, allowed were based upon payments aggregating $295, $47.25 for burial expenses and for tombstone, and $120 arrears on the board account of the intestate.

The complainant filed a paper setting forth his *objections*to the report of the register in the particulars that, the amount of the note Avas tolled by $285 of payments found to have been made thereon, and the sum of the board account. This paper does not, in any degree, conform to the rule with respect to exceptions to such reports. It omits entirely any notation of the evidence upon which the exception relied. — Rule 93, Ch. Prac.; Civil Code, p. 1556; Code, § 3161; *Warren v.*Lawson, 117 Ala. 339, 23 South. 65; and other authorities noted under the rule and statute cited. There is nothing to properly invite review here of the register’s findings and report, as confirmed by the chancellor.'

The decree is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.