This was a trial of tbe right of property between Elizabeth Hadden, (whose executors have succeeded her in the suit,) as plaintiff in attachment against one Lewis, and Powell, the claimant of the property, which was corn and cotton, on which the attachment was levied.
The Circuit Court on the trial admitted proof of the declarations of the defendant in the attachment, which were made late-in August or early in September 1846, while he was in possession of the property levied on, that he had sold the same to* Powell, the claimant. This was the only evidence on the part of the claimant of his title to the property, except that be proved that Lewis had been indebted to him for supplies to his family. The Circuit Court having admitted these declarations, charged the jury in the further progress of the cause in reference to-the claimant’s rights, “ that if the jury should believe that lie had purchased” the property, &c. thus treating the declarations as-evidence of the purchase, for there was no other evidence of it. In both points we think there was error, and as they are reserved by the bill of exceptions, tbe judgment must be reversed. The declarations of a tenant in possession of land, when part of the res gestee, are admissible; and the same rule prevails in relation to personal property. The declarations of a person so in possession may be received to explain the nature of his possession, as whether he held under a claim of his own or under another. But in this case the declarations proved were not of that character, but went far beyond it. They were the only evidence of the claimant’s title. For such a purpose they were-inadmissible and should have been rejected. — McBride & Wife and others v. Thompson, 8 Ala. 650, where the rule is correctly stated; Abney v. Kingsland & Co. 10 Ala. 355; Gary v. Terrill, 10 Ala. 206. It is to be observed that the declarations were not res gestee in respect of the sale, but related to a previous sale, and as evidence of it were inadmissible.
*3172. We cannot make onr opinion upon the next point clear without briefly stating the evidence relating to it. Lewis, the defendant in attachment, in January 1846, went into possession ■of the land on which the com and cotton during that year were produced. He went into' possession of the land as purchaser from Elizabeth Hadden, who had given him her bond for a title, and he had given her his promissory notes for the purchase money. Lewis, about the time of the August election in 1846, told William Hadden, as the agent of Elizabeth, that he could not pay for the laud and wanted ,the contract rescinded, to which William Hadden as Elizabeth’s agent agreed, but required Lewis to pay rent for the land, and he reluctantly consented. In October of the same year William Hadden as agent ■of Elizabeth, handed Lewis his promissory notes and received from him the bond for title, when Lewis remarked, “ This is a final settlement,” to which William Hadden assented. The Circuit Court charged that the rescisión was not complete until the interchange of the papers, and we are of that opinion. At the time of the agreement Lewis did not look into the authority raf William Hadden to make a valid agreement to rescind — his notes for the purchase money were not delivered to him, nor does it appear that William Hadden then had them. And on the other hand, he held the bond of Elizabeth for title, which was neither delivered to William nor required. The parties were not restored to their original situation, but each held papers against the other upon which a suit might have been brought; and although Lewis reluctantly .agreed to pay rent, yet no particular sum was agreed on or mentioned. The circumstances satisfy us that the parties did not then regard their agreement as complete, but looked to a further aet which was very material. It is hardly necessary to add, that if they did not consider it as complete and final, the law would not so consider it. — Quincy ct al. v. Tilton. 5 Greenl. R. 277; Milton v. Smith, 1 Mason’s R. 437; Moon v. Shenk, 3 Barr’s R. 13. The lien given by onr statute iu favor of landlords and the remedy by attachment in certain cases, bodi depend upon the relation of landlord and Sonant. If Lewis fairly sold his crop to Powell before the rescisión was consummated in October, until which time there was-no tenancy and of course . no lien on the crop, the sale was good- It is not necessary to decide the question made at the *318bar, whether an executory agreement under seal may be discharged by a subsequent parol agreement not executed.
Lot the judgment be reversed and the cause remanded.