The bill of exceptions in many respects presents an indefinite and unsatisfactory statement of facts. In more than one instance it is impossible to understand the bearing of certain statements made by witnesses, in fixing the .precise location of the strip of land in controversy.
Plaintiffs introduced a certified copy of the original patent of the United States Government, dated April 10th, 1848, to William E. Lucy for the north-east quarter of the south-west ■quarter of section 4, township 12, range 6 east, in the Coosa Land District, the possession of the patentee under the patent, his deal h, and that plaintiffs were his only heirs. The evidence then showed that the strip of land sued for was a part of the forty acres granted by the patent. Prima facie this proof entitles plaintiffs to recover in ejectment. Defendants pleaded not guilty, and relied upon the statute of limitations of ten and twenty years as a bar to plaintiffs’ action. After the evidence was closed, the court directed the jury, if they believed the evidence, to find the issue for the defendants.
The strip of land described in the complaint constitutes a part of the road-bed of the railroad defendant. A few well settled principles of law will be here stated, which control the rights of the litigants in this case.
An adverse possession of land which continues unbroken for ten years will confer a title which will sustain as well as defeat air action of ejectment, and the principle applies alike where possession is held under color or claim of title and where the possession was that of a mere trespasser.—Burks v. Mitchell, 78 Ala. 63; Wilson v. Glenn, 68 Ala. 386; Smith v. Roberts, 62 Ala. 83.
An important distinction between one who takes and holds possession under color or claim of title and a mere trespasser prevails. In the former, a defendant .may defeat plaintiff’s recovery by showing a superior outstanding title to plaintiff in .a third person, without connecting himself with it, his possession being good against all others except the true owner. Guilmartin v. Wood, 76 Ala. 211; Crosly v. Prigden, 76 Ala. 387. A mere trespasser having no color or claim of title, not standing in the relation of tenant to his landlord, heir to his ancestor, or vendee to his vendor, or other relation, to show a continuity of the adverse holding, can not set up an outstanding title in a third party, or prove different entries at different *250times by different persons, which merely show a succession of trespasses, to defeat the plaintiff’s title or to support his own. Ross v. Goodwin, 88 Ala. 395; Riggs v. Fuller, 54 Ala. 141; Ladd v. Dubroca, 61 Ala. 25; Bell v. Denson, 56 Ala. 448. Another distinction is, the possession of a trespasser is con-lined to the premises actually occupied by him, the ‘possessio pedis,” whereas the possession of one claiming under color of title by a written instrument is generally construed To be coextensive with the boundaries described in the written instrument.—Burks v. Mitchell, 78 Ala. 63; Stovall v. Fowler, 72 Ala. 78; Childress v. Galloway, 76 Ala. 133.
Mere possession of land is not prima facie adverse to the title of the true owner, but such possession is presumed to be in subordination to the title. When the title is shown not to-attend the possession, but that it resides in another, the law not favoring wrong, will not presume that the possession was-taken or is held and claimed in hostility to the title. The burden of proving the possession adverse, hostile to the title of the true owner, rests upon the party asserting it.—Dothard v. Denson, 72 Ala. 544. One in possession may claim the-right in hostility to the true owner, but to make such possession adverse, he must show that the true owner knew that he claimed in his own right, or a right hostile to. the true owner,, or it must be so open and notorious as to raise a presumption of notice.—Dothard v. Denson, 72 Ala. 544; Alexander v. Wheeler, 69 Ala. 332; 57 Ala. 304.
There was evidence tending to show that one Dozier Thornton was in possession of an undivided half interest of the land from 1855 to his death in 1860. That after his death, Kyle took possession of the Thornton interest, but in what way is not shown. Whether Thornton’s possession was under claim of right or subordinate to the patentee is not stated. After Kyle took possession, he “claimed in his own right until now.” If Thornton’s possession was adverse and Kyle succeeded to his interest and continued to hold adversely, and a knowledge of his adverse holding was brought home to the owners of the title, or so open and notorious as to raise the presumption of notice, the length of time he was in possession as disclosed by the testimony would present a complete defense, and if the defendant railroad held in privity to the possession of Kyle, this defense would be available to the railroad defendant; or, if the defendant has been in open notorious adverse possession continuously in its own right for more than ten years, such possession would be a bar, although the original entry by the railroad was a trespass. The record fails to show that either the possession of Thornton or Kyle, or of the defendant, was *251hostile and adverse to plaintiffs, or, if so, that knowledge of such adverse holding was brought home to plaintiff's, or was of that open and notorious character as to raise the presumption of notice.
Plaintiffs further insist they are entitled to recover a half interest in the'property, even though the claim through Thornton may present a defense to the other half interest. There was evidence tending to show that Hill, up to the time of his death in 1860, as the 'agent of some parties living in South Carolina, was in possession with Kyle. The declarations of Hill, wdiile in possession, that he held as agent for parties living in South Carolina, were properly admissible.—Kirkland v. Trott, 66 Ala. 417; Wright v. Smith, Ib. 516; Baucum v. George, 65 Ala. 260; Dothard v. Denson, 72 Ala. 541.
There is no evidence in the record tending to show the character of the claim and possession of those under whom Hill held as agent, whether in subordination to the true owner, or in hostility to it. The possession of an agent does not become adverse to that of his principal, until there has been an open disclaimer of the title under which he entered, and such disclaimer brought home to his principal.—Baucum v. George, 65 Ala., supra.
It is earnestly contended that the defendant succeeded to all the rights of the Eufaula, Opelika, Oxford & Guntersville B. R. Co.; but a careful examination of the record fails to show any privity of claim or possession between them. The bill of exceptions purports to set out all the evidence, and in such cases we are not at liberty to indulge in presumptions as to facts.
Theie is no plat or map showing the relative position of Wragg’s Mill, Christopher’s fence and cut, to the strip of land in dispute. Without some such aid, or a more specific description, it is impossible to clearly-nnderstand witnesses, when they testify as to “this side” of Christopher’s fence, or between “here” and Attalla. The proof abundantly establishes that plaintiffs have been out of actual personal possession for a sufficient length of time to perfect a bar, and defeat a recovery, but the proof as disclosed in the record fails to show that the possession of others, whether claiming under color of title or as trespassers, was so open and notoriously adverse to the title of plaintiffs, as to raise a presumption of notice of such claim. It was error to give the affirmative charge for the defendant.
There was no error in refusing the general charge for the-plaintiff. S.ome of the charges numbered 2, 3, 4, 5, 6, 7 and 12, invade the province of the jury, and others were misleading, and for one or the'other reason were properly refused.
*252Charges 10 and 13 were misleading and withdrew from the jury the consideration of other evidence in the cause, and for these reasons were properly refused, Charges 8 and 11 assert correct propositions of law and should have been given. In charge No. 9, the use of the phrase “set up”- may have had a tendency to mislead. The jury may have supposed it referred only to declarations of ownership, whereas actsof ownership may show an adverse possession.
Reversed and remanded.