We are unable to find in this record any evidence of exclusive possession of the land sued for in the appellants, or in those under whom they claim, prior to the death of Mary Ward, which occurred some time during the year 1884. On the contrary, it is shown that, up to that time, the possession, whether sole or joint is immaterial, Was in the ancestor of the plaintiffs below. There is some evidence that, subsequent to this event, E. A. Nicholas, through whom plaintiffs claim, while he continued to live on the premises, did so by the special permission, and in recognition of the claim of Camilla Kerr, in such sort as that her possession might have been adverse. There are, also, some facts shown to have been in evidence, from which the jury might have inferred that Mary Ward died more than three years before October, 1887, when this suit was instituted; and hence have concluded that appellants’ possession had been adverse for that length of time. It results from this state of the testimony, that the defense of ten years adverse possession, relied on in the court below, utterly failed, and if error was committed in the rulings of the presiding judge on that part of the case, they were, without injury to the defendants, and can avail nothing on this appeal. — Tiedeman on Real Prop. 698; Pickett v. Pope, 74 Ala. 122.
We are not, however, to be understood as intimating, that the action of the court in refusing to give the charges requested by the defendants, to the effect (1) that the fact that E. A. Nicholas lived on a certain part or lot of the tract, of which the lot involved was also' an integral part, was no evidence of poss'eBsion by him of the latter parcel; and (2) *351that the jury were the judges of whether the possession of Mary Ward was, under the circumstances, under claim of adverse possession, was erroneous in either particular, abstractly considered. On the contrary, when reference is had to the testimony which went to show that the whole tract was under a common inclosure, and, although subdivided into several lots, was subject to a common use, the refusal of the court to instruct the jury that evidence of the actual possession of one of these lots was not to be considered in determining whether this possession extended to the whole tract, was entirely proper; and the refusal to charge as requested concerning the possession of Mary Ward was justified, for the reason, among others, that the instruction assumed that her possession had been proved, when in point of fact the testimony of the plaintiffs tended to show that she never had possession, adverse or otherwise, but was on the premises only as the servant or mistress of Nicholas. David v. Malone, 48 Ala. 428; Henderson v. Marx, 57 Ala. 164.
The issue presented by the plaintiffs involved no inquiry as to the value of the land, either with or without permanent improvements. This inquiry was injected into the case, and made material, by defendant’s suggestion of three years adverse possession and permanent improvements. Upon proof of this suggestion depended certain statutory rights of the defendants, the character and extent of which were to be determined by a consideration of the values, respectively, of' the rents, the permanent improvements, and the land without the improvements. — Code, §§ 2702-2705. Proof of no one of these matters, except the first, was essential to any right asserted by the plaintiffs, but each of them was a material element of the defendant’s right to the statutory judgment which the suggestion invoked. — Coltart v. Moore, 79 Ala. 361.
The suggestion constituted a special defense, in the nature of a cross action for the value of permanent improvements, and the onus was upon the defendants to prove every fact necessary to support their claim. The value of the land without the improvements was such a fact. No proof of it was offered. The suggestion, therefore, was unsupported in a vital particular, and the direction to the jury to disregard it was free from error.
It is insisted, however, that at common law, and irrespective of the statutory suggestion of three years adverse possession, defendants were entitled to set off the value of *352permanent improvements made by them, against the rents, or damages for detention claimed by the plaintiffs, and that the charge of the court denied them this right. The general proposition thus asserted is abundantly sustained by authority, and is admitted in argument. — Gordon v. Tweedy, 74 Ala. 232; Hollinger v. Smith, 4 Ala. 691; Louquest v. Ten Eyck, 40 Iowa, 213; Malcolm v. Rowe, 39 Ga. 328; Learned v. Corley, 43 Miss. 687. But it is contended for appellee, that this right is inconsistent and incompatible with the suggestion of three years adverse possession and permanent improvements, and hence could not be pleaded with it, and, whether specially pleaded or not, could not be relied on in connection with the statutory suggestion. We do not think this position is sound. We are unable to see any repugnance between a claim to have the value of the improvements paid out of the rents, and, if it exceeds the rents, out of the land itself, in the manner pointed out by the statute, and a claim to have the rents only applied in compensation for the improvements. In the one case, the claim is for full compensation for the improvements. In the other, it may or may not be for full compensation, as the rental value of the land may or may not equal the value of the improvements. And in either case, the effort, so far as the rent is concerned, is the same — -to reduce plaintiff’s recovery in that behalf, to the extent of the improvements defendant has erected on his land, and which will enure to his benefit. Under the suggestion, the rents primarily are to be applied in liquidation of defendants’ claim, and the land itself only in case the value of the improvements exceeds the value of use and occupation. Under the common-law principle invoked, the rents alone can be applied to the satisfaction of the claim for improvements. So far as the application of the mesne profits is concerned, therefore, it is clear that the right asserted under each defense, instead of being repugnant, is identical the one with the other. It is equally clear, that there can be no inconsistency between the common-law right to set off improvements against mesne profits, and the statutory claim to have the excess of the value of the improvements over such profits charged upon the land, since this is a matter in no wise involved in or affected by the assertion of the common-law right.
The cases of Turnipseed v. Fitzpatrick, 75 Ala. 297; Hairston v. Dobbs, 89. Ala. 589, and Dobbs v. Hairston, Ib. 594, are not in point. They relate solely to the right given *353by sections 2702 and 2706, respectively, of the Code, and have no bearing whatever on the common-law doctrine we are considering. The two statutory rights referred to are manifestly incompatible. It were patently inconsistent for a defendant to set off the value of his permanent improvements against the claim for the value of use and occupation, and to have any excess of the former over the latter claim charged upon the land; and at the same time reduce the claim for rent, and thus increase the sum to be paid out of the land, by limiting his mesne profits to one year, by reason of the colorable right and good faith which characterizes his possession. To allow this to be done, would be to award full compensation for all improvements erected before suit brought, without any correlative compensation to the plaintiff for the use of his lands, except for one of, at least, three years; and to subvert the purpose of the statute, which was to secure to the plaintiff full damages for the disseizin of his land, and to the defendant full recompense for the improvements he had put upon. it. No such inconsistency exists between the right given by sections 2702 et seq. of the Code and the common-law right, and no such evil and subversive consequences can flow from permitting a defendant, who held in good faith under claim or color of title, to assert and rely on both defenses. The charges denied the appellants the benefit of both defenses. As to the statutory defense, the instructions, as we have seen, were correct. As to the other, they were erroneous.
The judgment is reversed, and the cause remanded.