Possession of land is prima facie evidence of right. A prior possession under a claim of right short of the *537period which creates a bar under the statute of limitations, will prevail over a subsequent possession, when no other evidence of title appears on either side. — Smith v. Lorillard, 10 Johns. 339.
It appears that Henry M. Hall went into possession of the land'for which this action was brought in the year 1833, and made valuable improvements and built a fine house thereon. It also appears that the defendant below, who is the plaintiff in error, was subsequently in possession, but without having or claiming any right, so far as appears. According to the case cited, and many others that might be cited, H. JV1. Hall upon these facts could have recovered the lands from the defendant below by the action of ejectment. But it further appears that II. M. Hall conveyed the lands to Amy Hall in 1842, and that afterwards they were sold under a judgment and execution against her and purchased by and conveyed, as we understand the bill of exceptions, to Mr. Pryor, the lessor of the plaintiff below. Upon all the facts as yet stated the plaintiff below could maintain ejectment against the defendant below, upon authority of Badger v. Lyon, 7 Ala. Rep.
It appears, however, that H. M. Hall went out of possession in 1837 and that the lands were occupied by others whose names, with the exception of that of the plaintiff in error, are not mentioned, to the time of the trial. It does not appear that they claimed any right, or whether they held under or against H. M. Hall, or those who acquired his right as already mentioned. It cannot be presumed that those persons entered or held adversely to H. M. Hall or those who acquired his right, but we think the cases of Badger v. Lyon and other cases tend strongly to show that they must be intended to have entered and held under H. M. Hall and those who successively acquired his title, they being the presumed rightful owners. — See Jackson ex dem. Gansevoort and others v. Parker, 3 Johns. Case, 124; Humbert v. Trinity Ch. 24 Wend. 587; Jackson v. Sharp, 9 Johns. R. 163; Jackson v. Harder, 4 ib. 203; 4 Halstead R. 149.
The counsel of the plaintiff in error now insists that H. M. Hall left the lands in 1837, without the animus revertendi, and ao lost his right, and consequently that his deed to Amy Hall conveyed no title; or at least that the question of the animus revertendi should have been left to the jury.
*538•-It appears by the bill'of exceptions that the defendant below on the trial asked the court t© charge the jury, that the plaintiff ■had not made out such a case-as would'entitle him to-recover, which the court refused, but instructed the jury that the plaintiff had proved such a title as would authorise him to recover against the defendant, — to which the . defendant excepted.
It is contended for the defendant in error, among many other •things, that if there was any question of the animus revert-endi in the case, it was one which the court might decide, and for this :the cases of Badger v. Lyon, 7 Ala. and Smith v. Lorillard, 10 Johns. R. 339, are relied on. ¥e do not concur with the counsel on either side; not with the counsel for the plaintiff in-error, because upon the whole evidence' -we hardly think the 'question arose, but if'there was any evidence in the whole case that H. M'. Hall left without the animus revertendi, it is our inference from the bill of exceptions, that this'question was not unade on the trial. We can'hardly think the ■ question arose upon the evidence of the- case, because-we think that he arid • those who are presumed to- have held under him had posses- ■ sion the whole time. The bill, of exceptions states that it was •proved by the plaintiff below that H. M. Hall went out of possession in 1837; but we understand this to mean that he left the ! place, and nothing more. We do not suppose that it was intended to negative the fact of legal or constructive possession. The ordinary meaning of the language does not go so far. Had . it been proved that those nameless persons who succeeded H. M. Hall in the actual possession, entered or held adversely, then the inference might have been: different. .The circumstances of this' case are strongly opposed' to. the idea that H. M. Ha'll intended to abandon these lands, because while he lived on or ■ occupied them, he made'valuable improvements and built a fine house; thus- perhaps doubling their value. There is no proof of any other fide, which might have induced him to leave.— Judging from the amount of damages recovered in this action,-it is to be-presumed that the lands were of considerable annual ■ value, and lastly, H. M. Hall conveyed the same lands to Amy Hall in 1842, no one then or at any previous time appearing to hold'-against him ;:and-this> conveyance -in 1842 is - before the defendant went info possession, as we'are bound to ..presume *539from the bill of exceptions, which says nothing as to the time when he entered. If going out of possession under these circumstances, is a fact which ought to have been left to the jury, in reference to the question of H. M. Hall’s intention to abandon the premises, we have no hesitation in saying that it could not, under the circumstances, have created a presumption of such an intention. The plaintiff in error at most therefore only lost the benefit of evidence tending to such a presumption, but which was not sufficient to sustain it. The cases of Badger v. Lyon, and Smith v. Lortllard, supra, do not show that the court may decide the question of the animus revertendi, but it .may be collected from them and other cases that the court may decide whether or not the question arises in a cause. There may be no evidence relative to the question, and then certainly the court may say so. It is not necessary in this case to decide whether there was any evidence tending in some very small degree to prove the want of the animus revertendi. If any., there was not enough to create a presumption of the fact, and therefore it was very proper in the defendant below not to make that defence. It does not appear by the bill of exceptions that he did defend on that ground, but from what is stated we infer that he did not. No charge was asked or excepted to which seems to have had the smallest reference to it: But on the contrary it is stated in the bill of exceptions that “ there was no evidence that Henry Hall had ever had any paper title, and the only question in the case was whether the possession of four years and valuable improvements, &c. made by Henry Hall, created such a presumption of title in him as to vest a presumptive title in Amy Hall, by virtue of his deed.” The inference from this .and from the circumstances of the case is very strong that the question of the animus revertendi was not insisted on-or made in the Circuit Court, but waived there. In Inge v. Murphy, 10 Ala. 886, it was held that when the question arising out of the possession of property for three years, under an unrecorded deed, is not raised before the jury, it will not be pronounced on in this court: And in Griffin v. Doe ex dem. Stoddard & Murphy, 12 Ala. 783, it was held that an objection that a deed was not proved and recorded, within the time prescribed by law, cannot be made in the appellate court, if not raised in the primary court. And because we infer from the circumstances of *540the case and from the bill of exceptions that the question was not made below, we affirm the judgment.
Dakgan, C. J., not sitting in this case.