Statutory real action by appellee against appellants. Plaintiff claimed title under patent to him from the general government, dated September 1, 1858. Defendants claimed title by adverse possession for ten years of themselves and those through whom they acquired possession.
Against the objection and exception of defendants, plaintiff was allowed to introduce in evidence a copy of his patent, certified by .the Commissioner of the General Land Office, under the seal of that office, without accounting for the original. There was no error in this ruling, as settled by Hines v. Greenlee, 3 Ala. 73, and Woodstock Iron Co. v. Roberts, 87 Ala. 436.
There was evidence in behalf of the defendants tending to show that one H. T. Wilkinson purchased the land sued for from the plaintiff in 1859,'and went into *257immediate possession and held the same adversely, as Ms own, until his death in 1873 ; and that thereafter his executor, W. W. Wilkinson, held possession until 1874, when he sold to Mrs. T. M. Milligan. Said W. W. Wilkinson and Jane Donnell were the only heirs of said H. T. Wilkinson, and they both sold their interests in the land to Mrs. Milligan in 1874. It appears that Jane Donnell executed a deed to Mrs. Milligan, but it is not stated in the evidence that W. W. Wilkinson did. The evidence of defendants further tended to show that Mrs. Milligan thereafter held the land in adverse possession, until 1885, when she “deeded” it to defendant, Holman, Who held it in adverse possession until the trial. Tho plaintiff gave evidence tending to show that the possession of H. T. Wilkinson, from 1859 until his death, was finder and in subordination, and not adverse, to his, plaintiff’s title ; and that there was no actual possession of the land by any one during the years 1880 and 1881. This suit was instituted on the 23d day of February, .1890. The defendants gave evidence tending to show that Mrs. Milligan rented the land, for the years 1880 and 1881, to Mrs. Stapleton and Mary Donnell, and made some advances to the latter, in 1881, to make a crop on the place that year ; and that she collected the rents for the year 1880, but none for 1881. Plaintiff’s evidence tended to show that theso persons, Stapleton and Donnell, did not occupy or cultivate the lands those years, but the bill of exceptions recites that they “lived in a house about fifteen feet from the Clark land, though the houses were known as the Clark houses, and were the houses that Clark built, yet on a survey it turned oiit that the houses were not on the Clark land, but were on a public forty acres, about fifteen feet from the Clark land. The last fact was not known until 1883, when the survey was made. The lots, cribs, buggy house, gardens were on the Clark lands.” It is not' stated that these latter — the lots, cribs, &c. — were possessed or used by the tenants, Stapleton and Donnell, or that they were in any wise appurtenant to the houses occupied by them. Nor is there any evidence that Mrs. Milligan held color of title to the lands, at that time, except the recital in the bill of exceptions that Jane Donnell “deeded” her interest in the lands to Mrs. Milligan in 1874. These are the tendencies of the evidence upon *258whicli the questions presented for .decision arise.
Plaintiff proved by one Gleason that he was present when Wilkinson and plaintiff made a trade by which he, Wilkinson, took plaintiff's cattle and stock, and plaintiff said he would leave his lands in possession of Wilkinson; that said trade was not in writing. The court overruled a motion to exclude this evidence made on the ground that the trade was not in writing, and defendant excepted. There was no error in this ruling. The evidence tended to show that Wilkinson’s possession was in subordination to plaintiff’s title. Writing was not necessary. The court, however, erred in permitting the witness, Nickols, to testify that in 1877, on the Glark place, while Dr. Milligan was in possession of the land along with his wife, he heard Dr. Milligan say that H. T. Wilkinson, while in possession of said lands, told him, Milligan, the way he came into possession'of the land was that he bought Clark’s cattle and stock and in the trade he was to take care of Clark’s land for him. The evidence was purely hearsay. It was not res gestae of Dr. Milligan’s possession, in right of his wife, for it was but the recital of past declarations of Wilkinson, in no way explanatory of the character of Milligan’s possession. As a declaration of Wilkinson showing the nature of his then possession, (conceding that such was its effect as res gestae, which we do not decide, see 1 Brick. Dig. 843, § 560), it was not properly proveñ — the evidence offered to prove it being hearsay. ' ..
There was no error in the refusal of the court to exclude the testimony of Chancellor that he heard Wilkinson say while in possession of the land that ‘ ‘the land was'Clark’s land.” It was part of the res gestae and admissible. — 1 Brick Dig. 844, §§ 567, 568. Evidence that Howell, a tenant of .the defendant, refused to surrendér possession to defendant, and had to be turned out by shit; was clearly illegal and was properly excluded.
In -order to give title by adverse holding, the possession relied on must be- actual and open. Mere constructive possession, such as title alone gives, is not sufficient. The.first charge requested by defendant was, therefore, properly refused.
The leasing of lands by one claiming title does no't constitute such actual possession as is necessary to give *259title by adverse possession, when it appears that the lessee never went into possession at all, but suffered the land to be unused and unoccupied during the term of the lease. The fact that the lessee was faithless to his contract must, in such connection, be visited upon the less- or, rather than the true owner of the land, who is entitled to know, from the fact of actual occupancy, that a claim adverse to him is being asserted. The • second charge requested by defendant was, therefore, properly refused.
For the error pointed out the judgment of the circuit court is reversed and the cause remanded.