[Jones, Adm'r, v. Pelham et al.] יי. preserve the due bill, not thinking such cutting would injure the deed or affect its validity, for the purpose of laying a predicate to contradict the witness', counsel, for the defense asked the witness the following question, to-wit: Did you not in a conversation in the court yard in Talladega during a recess of the court and while you were counsel for C. H. George, when talking to George W. Parsons about the present suit state to said Parsons that Charles H. George had told you, (witness) since the pendency of this suit as an explanation as to how the deed became mutilated that he, George, had cut the note of Charles Pelham, written on back of deed, out and thrown the deed aside as worthless." Plaintiff objected to question but objection was overruled. "The witness answered that he made no such statement to George W. Parsons at that time or at any other time. George W. Parsons was then examined as a witness to contradict the statement of Thomas Hayden, and for the purpose of contradicting Hayden, said Parsons was asked if Hayden in the court house yard had stated to him that George had told him (Hayden) as above stated in question to witness Hayden, that he had cut the due bill of Charles Pelham out of the deed, and thrown the deed aside as worthless, and witness answered that, said Hayden did make such declaration to him at the time and place mentioned." Objection to question and motion to exclude answer overruled "The testimony further tended to show that there was endorsed on the back of the deed from McMillan to George, a due bill from Charles Pelham and the appearance of the deed indicated that this due bill had been cut out of the deed at one time and afterwards pasted back. Boswell, the co-defendant of Pelham, defended possession on the ground of purchase of the property from the State and a deed from the Probate Judge of Talladega Probate Court, after a tax sale and purchase by the State of the property of Charles Pelham, at which, he contended, the property in controversy was sold. Boswell further contended that the possession of the property by Pelham had been and was adverse to the claim of George. The defendant Pelham disclaimed posession at the time of, and subsequent to, commencement of suit. Among other charges to the jury given by the court at the request of defendant Boswell, was the following; "If the evidence shows you that prior to the commencement of this suit, Charles George mutilated the deed to him from McMillan and said in relation thereto, that he mutilated it to [Jones, Adm'r, v. Pelham et al.] preserve a due bill or note written on the back of it and that he had thrown aside the remainder of this instrument as of no value, you may look to such facts in connection with all the evidence in deciding whether Pelham had paid George for the lot, if the evidence shows you that Pelham ever owed anything to George for the lot." The opinion states all other facts necessary for its understanding. KNOX & BOWIE, for appellant, cited Woodruff v. Winston, 68 Ala. 412; Wilkinson v. Roper, 74 Ala. 140; Hughes v. Wilkinson, 35 Ala. 453; Guilmartin v. Wood, 76 Ala. 209; Blackwell on Tax Titles, 133 et seq., 424, 425; Burroughs on Taxation, 203-7; Tilman v. White. 2 Comstock Rep. 66; Blount v. Strong, 60 Ala. 572. PARSONS & PARSONS, for Boswell. BISHOP & WHITSON, for Pelham. CLOPTON J.-As a general rule, a party's own declarations, made in the absence of his adversary, cannot be admitted as evidence for him. An exception to the general rule is, that the declarations of one in possession of property, explanatory of the possession, may be received in evidence as constituting a part of the res geste. His declarations, however, respecting the source of his title, and not explanatory of the possession, are inadmissible. The defence of the statue of limitations having been set up to the present suit, it was necessary for the defendants to show adverse possession under claim of right during the statutory period. For this purpose, the declarations of Pelham, while in possession of the property, that he owned it were admissible in a proper case, as explanatory of his possession, and as showing an adverse claim. But there is evidence tending to show, that he went into possession as the tenant of George, plaintiff's intestate, or by his permission. If such be the fact, his assertion of an independent hostile claim must be brought to the knowledge of George, by whose permission he entered into possession, in order to put the statue of limitations in operation. Wells v. Shearer 78 Ala. 142. His declaration of ownership, made in the absence of George, are not admissible evidence of such fact; and in order that they may be received as evidence of the assertion [Jones, Adm'r, v. Pelham et al.] of an adverse claim for the purpose of putting the statue of limitations in operation against George, if Pelham went into possession by his permission, they should have been connected with proof offered or proposed to be offered, that such assertion was brought home to him. In the absence of such evidence, or of an assurance that such evidence would be subsequently introduced, they should not have been admitted for the purpose of the defence of the statue of limitations. The testimony of Parsons, if admissible for the purpose of impeaching the witness Hayden, which we do not decide, could not be received for any other purpose. The court, however, seems to have considered and treated his testimony of the statements of Hayden, as original evidence of the facts, which Parsons testified, Hayden had stated to him; for such facts constitute a part of the hypothesis of one of the charges, in which the jury were instructed they might look to them in connection with all the evidence in deciding whether Pelham had paid George for the lot. In assessing lands for taxation, the statute in force at the time the lot in controversy was assessed, provided, that they should be described as follows: if an entire section, by the number of such section; if a sub-division of a section, by a designation of such sub-division; if less, or other than a sub-division, by the number of the lot, or other lands by which it is bounded; and in cases of lands surveyed, and laid out as a town, a plat of which is recorded in the office of the judge of probate; if the track be a whole lot or block, by the designation of the number thereof, and if it be a part of a lot or block, by its boundaries, or some other way by which it may be known.-Acts 1868, 297. The purpose of the statute is, that the description in the assessment should be sufficiently definite and certain to inform the owner that his property is assessed for taxation, and the purchaser at the tax sale what property he is buying. In the assessment of the lot in controversy, it is described as "a house and lot on Battle street in the town of Talladega," as the property of Pelham. The evidence shows that Pelham owned another house and lot on the same street, in which he resided, and adjoining the lot in question. The description affords no data by which to ascertain what house and lot on Battle street is intended. The assessment is void for uncertainty. Wilkinson v. Roper, 74 Ala. 140; Hannell v. Smith, 15 Ohio, 134; Blackwell on Tax Titles, 423; Burrows on Taxation, 203. In a conveyance between individuals where the pur [Strange & White v. King.] pose is to explain and give operation to the intention of the 84 212 109 382 84 212 124 267 Strange & White v. King. Statutory Action of Ejectment. 1. Possession as evidence of title.-A person who is in possession of land, exercising acts of ownership, has such presumptive right of possession as will enable him to maintain or defeat an action of ejectment against any person who does not show a better title. APPEAL from Birmingham City Court. Tried before Hon. H. A. SHARPE. This was a statutory action of ejectment brought by appellee, King, against one Gentles, tenant of appellants, Strange and White, who were admitted to defend the action. The state of the record title to the property sued for appears in the opinion. There was evidence that at the time King erected the house on the land, he was notified of appellants' [Strange & White v. King.] claim thereto; that after the erection of the house, King placed a tenant therein who remained a few weeks; that thereafter without King's knowledge or consent appellants took possession and rented the property to one Gentles. The cause was tried without the intervention of a jury and was decided in favor of King, the plaintiff. WEBB & TILMAN, for appellants.-1. Plaintiff must recover on strength of his own title, not upon weakness of his adversary. Wilson v. Glenn, 68 Ala. 386; 76 Ala. 387; Ib. 134. When suit was brought appellants were in possession under color of title. If plaintiff basis his right to recover on prior possession, he is restricted to doing so alone against a mere, or naked, trespasser.-1 Steward, 600, 601; Sedgw. & Wait on Trial of Title, § 722; Wilson v. Glenn, supra; 76 Ala. 134, 387; State Bank v. Barnes, 82 Ala. 607; 71 Ala. 110; 73 Ala. 216. STONE, C. J.-This is a statutory real action, for the recovery of one acre of land in the south-west corner of the northeast fourth of the south-east fourth of section 29, township 17, range 2 west, in Jefferson county. Under a description, fatally imperfect, an acre of land, corresponding to this as to section, and somewhat as to its location in the section, was in 1873, conveyed by one Waits to Henderson and Marcus Hamilton; and there is some proof that they occupied it for a time. They then abandoned it, and went to parts unknown. Neither of the parties to this suit is shown to claim under either Waits or the Hamiltons, and neither party connects himself with the title or possession of either of them, by any proof shown in this record. The conveyance from Waits to the Hamiltons, and all claim which either of them could assert, we will dismiss from further consideration, as having nothing to do with the case. The common source of title of each of the parties to this suit-both plaintiff and defendants- was Morgan G. Wood. King, the plaintiff, claims that in 1878, Wood and wife conveyed the land in controversy to him. That deed was lost, and testimony was offered of its contents. Strange and White's claim of title was as follows: In 1880 Wood and wife conveyed to Reed & Meade the north-east quarter of the south-east quarter of said section 29, less about one acre in the north-east corner of said quarter-quarter section. Meade conveyed his half interest to Reed in March, 1882, |