— It was admitted before entering upon the trial that plaintiffs’ father in 1864 purchased and became the OAvner of the southeast quarter, the east half of the northwest quarter and the Avest half of the northeast quarter of section six, toAvnship tAventy-one, range thirteen in Randolph county; and that shortly after he purchased it, he sold to the defendant, the Avest half of the northeast quarter and the east half of the southeast quarter of this tract, putting him in possession. The eAodence Avithout dispute shoAved that the southeast quarter of the tract Avas traArersecl by the Rock Mills ana High Shoals road Avhich entered this quarter section at the northAvest corner and extended across it in a southeasterly direction, not exactly in a straight line, going out at a point a little north of the southeast corner of *309said tract. The controversy here is over that portion of the southeast quarter lying east of this road in the west half of the said southeast quarter. The contention of the defendant is that shortly after his purchase from the plaintiffs’ father, who was his brother, it was agreed between them that the road should be the line between their lands. In other words, he was to have that portion of the west half of the southeast quarter of the section lying east of the road, and his brother to have that portion of the land conveyed to him lying south and west of this road. There was testimony offered by him tending to establish this agreement and the possession by each of them of the lands in pursuance thereof. Practically this was the only issue in the case. Upon this issue there was a conflict in the testimony; the testimony offered by the plaintiffs tending to show no such agreement and. no possession by the defendant of the lands in controversy, while that offered by the defendant tended to show his actual possession of the lands in controversy for more than ten years uninterruptedly under this claim of ownership, and acts of ownership exercised by the plaintiffs’ father over that portion of the lands conveyed to defendant by him lying south and west of this road.
It is too well settled to need citation of authorities, that if such an agreement was made and the defendant went into the actual possession of the lands under it and remained in possession uninterruptedly and exclusively, claiming to own them for ten years, that his title became an indefeasible one and nothing short of a conveyance by him of the land or the adverse possession by the plaintiffs or some one through whom they claim for a period of ten years, could divest the legal title out of him. — Tenn. Coal, I. & R. Co. v. Linn, 26 So. Rep. 245. The burden of proof was of course upon the defendant to show title by adverse possession; after this was done, it was then upon the plaintiffs to show a divestiture of title out of him.
What we have said is sufficient to determine the correctness of the rulings of the court in the admission and exclusion of testimony to which exceptions were reserved, and the giving of written charges, requested by *310the plaintiffs and the refusal of certain written charges to the defendant.
The first assignment of error is based upon the refusal of the court to exclude the answer of a witness responsive to the question asked, no objection having been interposed to the question. This statement is sufficient to show the want of merit of the assignment. — Coppin v. State, 26 So. Rep. 333 and authorities there cited. But independent of this, the evidence was competent as' an admission against interest by the plaintiffs’ ancestor, tending to establish the existence of the agreement as contended for by the defendant and the possession of the lands by each under' it.
We find no merit in the second assignment.
The third assignment relates to the action of the court in allowing the defendant to' ask upon re-direct examination for the whole of a conversation after a portion had been brought out by plaintiffs upon a cross-examination. This was clearly permissible.
The fourth assignment is disposed of in what we have said in reference to the first assignment.
The fifth and sixth assignments go to the refusal of the court to exclude testimony to effect that the defendant owned lands, north of the lands in dispute and that plaintiffs’ father owned lands on the east side of the Rock Mills and High Shoal road. This testimony was only a statement of an admitted fact in the case and no possible injury could result from its. introduction.
The plaintiffs had offered, in evidence a conversation between W. W. Pittman and the defendant in relation to the land in controversy. J. D. Pittman was introduced as a witness by defendant in rebuttal, who testified that he was present and heard the conversation. The seventh assignment of error is based upon an objection by the plaintiffs to the- testimony of this witness, “because W. W. Pittman never testified that J. D. Pittman was present at the conversation, but that he was not present.” It was a question for the jury to determine whether or not he was present; there .was absoiutety no merit in the objection.
The other assignments relate to. the giving and refusal to give certain charges. .
*311Charges one and. two refused to the plaintiff are Clearly upon the weight of the evidence and were properly refused. It was a question of fact for the jury, under all the evidence, to determine whether the acts of ownership exercised by the defendant over the woodland constituted an adverse possession by him.
Charges “A,” “B-,” “C,” “D,’’ and “E” given at the request of the defendant asserted correct propositions of law and were supported by the tendencies of the evidence in the facts hypothesized in each of them. — Jones v. Williams, 108 Ala. 282.
Guided by the rule laid down in Cobb v. Malone, 92 Ala. 630, we find no error in the overruling of plaintiffs’ motion for a new trial.
Affirmed.
Dowdell, J., not sitting.