"We deem it unnecessary to announce any opinion on the various rulings of the circuit court, in reference to the deposition of Mr. Glasscock. The whole purpose and effect of that denosition was to prove a sin gle fact — namely, that Mrs. Nancy Bishop had, herself, and in her own name, purchased from the government the land on which the alleged trespass was committed. This fact had been proved by the plaintiff, before the deposition of Mr. Glasscock was offered by the defendant. The bill of .exceptions states the order in which the evidence was adduced. The language is, “ The plaintiff first proved that Nancy Bishop entered the land with funds of the estate, and in her own name.” The testimony, then, tending, as it did, only to prove a fact which had been previously proved by the plaintiff, could not have injured the plaintiff. — Shep. Dig. 568, § 90.
[2.] The legal title to the land was first in Mrs. Bishop. William Bishop,- her husband and the testator, had, at the time of his death, no claim to the land, either legal or equitable. It was purchased from the government after his death. This being the case, the probate court had no jurisdiction to order its sale, under a petition which alleged thst it was of the estate of the said William Bishop. Pettit v. Pettit, 32 Ala. 288; Cothran v. McCoy, 33 ib. 65; Johnson v. Collins, 12 ib. 322; McCain v. McCain, ib. 510.
[3.] The title to the land having been in Mrs. Bishop, it passed to her heirs-at-law, either by her deed copied in the record, or by descent on her death. The plaintiff, Wesley Bishop, and Mrs. Blair, the wife of defendant, are two of the children and heirs-at-law of Mrs. Nancy Bishop. They each took, as joint tenants, an interest in the land in controversy. This being the case, if their title remains as it was at her death, neither can maintain the action of trespass against the other, because there has been no actual ouster. — 1 Chit. Pl. 79.
[4.] Mrs. Blair, being joint tenant with her brother, Wesley Bishop, it is clear, whether her title be governed *86by the woman’s law or not, that her husband, Mr. Blair ? acquired by his marriage the right to use and occupy her lands during the coverture. — Code, § 1983; Cheek v. Waldrum, 25 Ala. 162; Neill v. Johnson, 11 ib. 615.
[5.] It is contended for appellant, that Mr. Blair is estopped from disputing the title of Wesley Bishop — 1st, by the decree of sale in the probate court,. to the record of which he and his wife were parties; 2d, by standing by and permitting the sale, by refusing to let Wesley Bishop surrender his purchase, by receiving a part of the purchase-money in distribution, and by paying Wesley Bishop for a right of way over said land. The authorities cited above show, that the proceedings of the probate court were void, and hence there is nothing in this first objection. We will not now decide whether the acts cn pais do not amount to an estoppel. If, however, they do, such estoppel can only be invoked in equity, and does not confer on Mr. Bishop any higher legal title than he at first owned.-^ — See McPherson v. Walters, 16 Ala. 714; Smith v. Mundy, 18 ib. 182; Hopper v. McWhorter, ib. 229.
[6.] We need not inquire, whether the order granting the private road was void; or, if void, whether that fact would clothe the landlord with the immunity with which landlords are usually clothed — namely, the- right to hold their tenants estopped from disputing the title under which they entered. — See Sadler v. Langham, 34 Ala. 311; and Crommelin v. Thiess, 31 Ala. 412. Such estoppel, if it apply, can only be co-extensive with the possession received. In this "case,'Mr. Blair received only a right of way; and, under the order of the court of county commissioners, his possession was limited to the mere road track, and there only as an easement, or right of way. It gave him no right to anything outside, or to occupy the land beyond the track of the road. In fact, we do not understand the appellant as controverting this proposition. His right to maintain this suit depends on his ability to maintain the proposition, that Mr. Blair’s right of way did not Confer on him the right to remove the timber tree. The bill of exceptions informs us, that the trunk of the tree, which was removed by Mr. Blair, lay outside of the *87road-track. The gravamen of the present action is for breaking and entering the plaintiff’s close. Conceding the validity of the order under which Mr. Blair acquired the right of way from Mr. Bishop, the argument is, that the former, entering under the latter, is estopped from disputing his paramount right. However weighty this argument might be, if the trespass complained of had been committed within the boundaries of the road-track, we are satisfied it can exert no influence beyond those boundaries. The trespass, if one was committed, was on plaintiff’s close, outside of the road-track. As to this, Mr. Blair did not hold under Mr. Bishop, and he is, consequently, not estopped from disputing his title.
The charges asked and refused are in conflict with these views, and the court did not err in refusing to give them. The affirmative charge given could not possibly affect the plaintiff prejudicially.
Judgment of the circuit court affirmed.