We are not inclined to enter into the inquiry, when ancient documents may be read in evidence, without proof of their execution. Nor will we discuss that other question, when certified copies may be used without accounting for the originals, the contest arising between parties who are presumed not to have the custody of the originals. There is testimony in the record tending to show that, at some time before Bernstein acquired his title, the lot in controversy, or a part of it, was used and occupied as part of the Bell tavern property. Possibly the stable, partly brick and partly framed, covered a part of the lot sued for. Proof by some of the witnesses tends to show that Mrs. Hill, a former owner of the lot to which Bernstein has a deed, at some time occupied a part of the premises sued for, as'a cow lot. The dust of years has settled on the transactions brought to view in the testimony, and human memory is not infallible. Some of the witnesses must be mistaken, for they are in conflict. Be the true facts as they may, we hold that the rulings of the circuit court, in receiving the ancient deeds and copies of them in evidence, are free from error.—White v. Hutchings, 40 Ala. 253; 1 Greenl. Ev. § 145, and notes; Sharpe v. Orme, 61 Ala. 263; Baker v. Prewitt, 64 Ala. 551; Beall v. Dearing, 7 Ala. 124.
This is the fourth appeal in this cause: Bernstein v. Humes, 60 Ala. 582; s. c. 71 Ala. 260; Humes v. Bernstein, 72 Ala. 546. We had hoped we had declared the principles so clearly that the case would not return upon us. Among other things, we have said, in substance, that if the lot in controversy is south of the seven feet alley — in other words, more than ninety-nine feet south of the north-west corner of lot seventeen, — -then Bernstein has shown no documentary title to it. We further said if Bernstein took or held possession with no intention of claiming the property if not embraced in his deed, and if in fact his deed does not embrace it, then his possession was not adverse, so as to ripen into a title by ten years of such occupancy, nor would it avoid a conveyance by the rightful owner, not in possession. We said further, that if lie and those under whom he claimed, had been in continuous adverse possession, claiming to hold as of right for fourteen years, eight months and ten days, then such adverse holding perfected a title in him, although he knew he had no title in the begin ning. The question, in this aspect of the case, is whether he claimed, right or wrong' — that is, whether he had title or not, — or whether he claimed only in the event he had title. And the same rule applies to the other phase of the question. If he was in adverse possession, claiming the right to hold the property whether *245his title embraced it or not, then Walker’s deed to Chapman, made while Bernstein was so in adverse possession, was invalid, and conveyed no title which will maintain a suit. On the other hand, if Bernstein was in possession, claiming the lot only in. the event it was covered by his deed, then if his deed does not embrace it, such possession, no matter what acts of ownership he may have done and performed, will not invalidate the deed of Walker to Chapman ; and this line of the defense must fall. Smith v. Roberts, 62 Ala. 83 ; Clark, v. Snodgrass, 66 Ala. 233; Alexander v. Wheeler, 69 Ala. 332. The circuit court erred in the seventeenth special charge given at the instance of plaintiffs. It required that, to avoid Walker’s deed to Chapman, Bernstein’s possession should have been under a bona fide claim of right to the premises. This was equivalent to requiring that Bernstein should have had the honest belief that his title was good. It was enough that he claimed in independent right, adversely.
Be versed and remanded.
BeioKKLl, C. J., not sitting.