Action to recover forty acres of land by the heirs of JohnS. Reeves, deceased, against Wisdom and his tenant, Harcrow. Plea, not guilty, and suggestion upon the record of three years adverse possession and permanent improvements under the betterment act.— Code, § § 2702 et seq. The plaintiffs showed title by •government patent to David Dale, September 2d, 1850 ; •and deed from David Dale to John S. Reeves, their ancestor, October 31st, 1851. The defendant, Wisdom, claimed title as a purchaser from said John S. Reeves, and introduced a transfer or assignment indorsed upon the said deed of David Dale to said John S. Reeves, as follows:
“The State of Alabama, Benton County,
December 10, 1851.
I assign the within title of land unto Nathan Reeves from me and my heirs forever, this the day and date above written.
Witness:
(Signed) John S. Reeves.”
James K. McKinney,
G. T. Reeves.”
He then introduced a deed from Nathan Reeves and *430wife to himself January 14th, 1886, and gave evidence tending to show adverse possession for ten years and more by said Nathan Reeves, and by himself for more than three years before this suit was brought. He also gave evidence of permanent improvements and their value, the value of the land and use and occupation, in conformity to section 2703 of the Code.
If the -transfer of the Dale' deed to Nathan Reeves, hereinabove set out, was executed in 1851, as it purports on its face to have been, it is very clear it was insufficient as a conveyance of the legal title for the want of a seal; the law at that time requiring conveyances of real estate to be executed under seal. The defendants invoke section 2694 of the Code which first became law by the adoption of the Code of 1852. It is set out in that Code as section 2198, in the same language as found in the subsequent Codes down to and including the present, and is as follows: “Seal not necessary to enable grantee to sue. — A seal is not necessary to convey the legal title to land to enable the grantee to sue at law. Any instrument in writing signed by the grantor, or his agent having a written authority, is effectual to transfer the legal title to the grantee, if such was the intention of the grantor, to be collected from the entire instrument;” and it is insisted that this enactment retroacts so as to give a grantee the right to maintain or defeat an action upon a conveyance, without seal, executed prior to the statute. The position is untenable. The statute does not dispense with the necessity for a legal title in the plaintiff to maintain, and the defendant to defend, an action at law. It simply dispenses with the seal as essential to the conveyance of the title. A seal being necessary, in 1851, to convey the title, a deed then executed not under seal conferred no right of action at law upon the grantee, -and it was without legislative power to cure the essential omission and confer such a right. A new remedy may be given by the legislature to enforce existing rights, but it cannot give the right itself by retroactbog on past transactions. To hold as the defendants invoke, would be to declare that the title' of John S. Reeves was divested by legislative act and invested in the defendant, as a derivative purchaser, so as to enable him to defeat ejectment. This cannot be done. Wetzler v. Kelley, 83 Ala. 440. But the plaintiffs, them*431selves, have given evidence tending to show that the transfer in question was not, in fact, executed until 1859, or subsequently thereto. This testimony proceeds from the witness George W. Garmony,who testifies that he saw the Dale deed in 1859, and that said transfer was not then on it; that he saw it in 1868 and the transfer was then on it. Thus it became a question for the jury to determine whether the transfer was executed, if it was executed at all, prior or subsequent to the statute in question. If prior, it did not pass the title ; if subsequent, we are of. opinion it did. We think its language is such as to evince the intention of the assignor to transfer the legal title, and, under the influence of section 2694 of the Code, had that effect, if executed after the enactment of that law.—Lemon v. Graham, 131 Pa. St. 447; Harlowe v. Hudgens, 84 Tex. 107; 5 Am. & Eng. Encyc. of Law, 438; Webb v. Mullins, 78 Ala. 111. In’ view of these principles charges 4, 5, 6, 7 and 10, given at the Instance of the plaintiffs, ought to have been refused .
Prior to the institution of the present suit these plaintiffs brought a real action in the court below for the recovery of this land against the defendant Wisdom, and upon the interposition of a plea that defendant was not in the actual occupation of the land at the time of suit brought, but that his tenant actually occupied the same, the plaintiff took a nonsuit. Pending that suit the deposition of Nathan Keeves was taken by the defendant, upon interrogatories filed in the cause.' Nathan Keeves afterwards died. On the trial of the present action the defendants offered to read that deposition in evidence. The plaintiffs objected on the ground that they did not have notice of the time and place of taking the deposition. It appears that when the interrogatories were served on their counsel, the counsel, by writing indorsed upon or annexed to the interrogatories, demanded notice of the time and place of taking the deposition. The commissioner failed to give the notice. In all other respects the deposition was regularly taken. It will be seen upon examination of the statute (Code, § 2802), that thé requirement of notice to the adverse party of the time and place of executing the commission applies only to open commissions for the examination of witnesses by the parties without written interrogatories. Section *4322803 provides for the taking of depositions on interrogatories, and the proceedings are therein minutely prescribed. ’ No such notice as that in question is there required. We hold,'therefore, that the deposition of Reeves was, in all respects, legally and regularly taken, and this action being the same as to subject matter and parties, and the witness being dead, it was admissible in evidence on this trial. There are, however, certain portions of the testimony of the witness which, upon objections which were duly made, were properly excluded. These are the statements of the witness of transactions with or statements by the deceased, John S. Reeves.This action is by the legal representatives of J ohn S. Reeves, deceased, claiming the land by inheritance from him. The defendant defends upon thp asserted validity of title acquired by the witness, Nathan Reeves, from John S. Reeves. The latter is, therefore, under the statute, incompetent to testify as to transactions with or statements by the deceased John S. Reeves.—Hodges v. Denny, 86 Ala. 226; 5 So. Rep. 492. Under this rule the following statements of the witness should be rejected : In the answer to the 8th interrogatory : “The said orig-nal came into my possession the day and date it was made,” and, “I got said originalfrom John S. Reeves,” and so on to the end of that answer : and the whole of the answer to the 14th interrogatory. The witness was also incompetent to testify to the conversations had with Lafayette Reeves, now deceased, who was a son of John S. and the father of the minor plaintiffs, from whom they directly inherited whatever interest they have in the land, as set forth .in the answer to the 16th interrogatory. The remaining portions of the testimony of Nathan Reeves all legitimately tend to prove adverse possession on his part, and are admissible.
The defendant, Wisdom, was not incompetent to prove transactions with or statements by the deceased, Nathan Reeves, while he, Nathan Reeves, was in possession of the land, tending to show an adverse possession on his. part. Nathan Reeves, nor his legal or personal representatives are parties to the suit or interested in the result thereof. The testimony of Wisdom is in support of the title of Nathan, and-under the rule declared in Bibb v. Hunter, 79 Ala, 351 (358); Ala. Gold Life Ins. Co. v. *433Sledge, 62 Ala. 566, and Dismukes v. Tolson, 67 Ala. 386, was competent. The court erred in excluding it.
It was competent for the plaintiffs to prove by the witness Garmony statements made by Nathan Beeves tending to show that his possession of the land was permissive and in subordination to the title of John S. Reeves, provided those statements were made while Nathan was in possession. Such statements made after he sold to Wisdom and went out of possession are mere hearsay and inadmissible. We observe that the testimony is not confined to the time of Nathan’s possession. The burden was on plaintiffs to show that the statements were made whilst the declarant was in possession, and, hot having done so, the court erred in receiving the testimony.
There was no error in admitting the testimony of Gar-mony as to seeing the Dale deed and the transfer thereon in 1859 and 1868 ; nor as to offers by John S. Reeves in 1859 to sell the land, made .in the presence of Nathan Reeves.
The objections to the testimony of the witness, W. C. Brookway, were not well taken and were properly overruled.
The criticisms made upon the testimony of Garmony as to statements made by Nathan Reeves, in disparagement of his title and claim to the land, apply alike to the witness Wm. Young.
The testimony of Geo. W. Hendrix and Rhoda Reeves was legal and competent, and properly received.
The objections to the testimony of James S. Reeves in reference to the ! ‘ east forty, ” as it is called', were well taken and should have been sustained for obvious reasons.
The record of a pending suit by these plaintiffs against Nathan Reeves for another forty acres of land has nothing to do with this case, and ought not to have been admitted.
It was not competent for defendant Wisdom to testify on his own behalf that Nathan Reeves told him how the transfer came to be put on the Dale deed. It involved proof of a transaction with the deceased, John S. Reeves, and further, in the shape it was presented, was hearsay.
The first charge given at the instance of the plaintiffs’ was proper.
As the ca.se must be reversed for other causes, we simply remark, in reference to charges number 2 and 3, giv*434en for plaintiffs, that they were mere arguments, and ought to have been refused for that reason, if for no other.
Charges 8 and 9 are abstract and ought to have been refused. There is no evidence of a joint possession of the land by Nathan Reeves and the children of John S. Reeves.'
In what we have said it has been made sufficiently to appear that charges 1, 2, 3, 4, 5, and 7, requested by defendants, were properly refused. They all assume that, although the transfer may have been executed prior to the statute of 1852, a seal was not necessary to pass the legal title, which, we have seen, is not the law.
There is evidence tending to show that the date of the transfer on the Dale deed had been changed, so as to leave uncertainty, arising from, the face of the instrument itself, as to what its true date was. It was offered in evidence by the defendants as an ancient document, self-proving. If executed in 1851, it was more than thirty years’old, but under the evidence, as it comes before us, it might have been executed within less than that time. It was for the trial judge to inspect the paper and hear such evidence as might be offered to explain the uncertainty, and determine whether it bore such marks of suspicion, unexplained, as to justify its rejection as an ancient document. The trial judge admitted it in evidence, and his ruling is not before us. for review. Being admitted, the jury.must have received it as, at least, prima facie an ancient document, and the burden was on the plaintiffs to show it was not. We think, therefore, the trial court erred in refusing to give charge No. 6. See on this subject; generally, 1 Am. & Eng. Encyc. of Law, 565, et seq.
There was no error in refusing to give charge 8, for the reason that it confines the ascertainment of the rental value of the land to the year in which the trial occurred, even extending beyond the time of the trial. The statute requires the assessment of the value of the use and occupation of land, during the adverse possession of defendants, and those whose estate they, have, up to the time of trial,- not including the increased value of the use and occupation by reason of the improvements;The charge is bad also because it in effect requires the assessment to he made including such increased' value.. - *435Again, we discover no evidence that the defendant made any improvements on the land, and the evidence is in conflict, leaving it a question for the jury, whether the possession of Nathan Reeves, at the time he made improvements, was adverse or not. Improvements made during a permissive holding are not within the purview of the betterment act. "What we have said will indicate the vice of charge 10. Whilst the evidence shows without conflict that defendant, Wisdom, was in the adverse possession of the land for three years and more, before the suit was brought, thereby entitling him, as against mesne profits, to pay for permanent improvements made by him and those whose estate he had, made under an adverse holding, yet, as we have said," there is no evidence that he made any such improvements, and the charge fails to submit it to the jury to determine whether Nathan Reeves’ possession was adverse or not at the time he made improvements.
Charge 11 is argumentative, and was properly refused.
The matters provable under pleas second and third were provable under the general issue, and defendants had tne benefit of them under that plea. There was no available error, therefore, in the refusal of the court to allow these pleas to be filed. The defendant, Harcrow, had the right to file a disclaimer of possession if he saw fit to do so ; but his plea that he was a mere tenant of Wisdom and had paid the rent.to him constituted no defense, and facts therein averred would not protect him from a recovery by plaintiffs, if they succeed in the action, of mesne profits during the time of his'possession.
This disposes of all the questions presented by the record. For the errors mentioned the judgment is reversed, and the cause remanded.
Reversed and remanded.