This statutory action in the nature of ejectment is prosecuted by Clark Butler and *380others, sons and -daughters of W. H. Butler, deceased, against Daniel Butler, also a son of said W. H.. Butler. Plaintiffs derive their title as heirs at law of their father. Defendant, conceding the original title of the father, claims that the title is now vested in him by adverse possession. It is shown without conflict that during all the period of defendant’s occupation of the land doAvn to the death of W. H. Butler in January, 1899, the latter was also living on the land, he and defendant and defendant’s family living together thereon. The laAV in such cases refers the possession to the title, and, hence, prima facie the possession throughout that period was in W. H. Butler, and defendant had no possession adverse to him. It is shoAvn, also without conflict, that, so far from claiming adversely to his father, Daniel Butler by unequivocal acts, such as giving the land in for taxes in the name of his father, throughout that period recognized the title of W. H. Butler in and to the premises. Nor is there any room for controversy on the evidence adduced or offered that Daniel entered not in hostility to but by permission of W. H. Butler. And if he ever at any time brought home to his father a knowledge of a disavowal of the servient and permissive character of his occupation, there is no hint of it in the evidence introduced on the trial. In the absence of such evidence the fact that the defendant declared to third persons that he claimed the land as his OAvn Avas of no consequence, and evidence of it Avas properly excluded from the jury. — Jones v. Pelham, 84 Ala. 208.
Nor did the court err in excluding the proposed evidence as to declarations of W. H. Butler to the effect that he had given the land to Daniel, the defendant. Of course, these declarations were not competent, and they were not offered to show a conveyance to Daniel. Their sole office in the case would have been to show that Daniel, and not W. I-L, held the possession of the premises, and that the possession of the former Avas adverse to the latter. Considered as showing this, they also necessarily showed their OAvn incompetency, since with the declarant out of possession there Avas no predicate *381for his declarations, they were not within the doctrine of res gestae, or any exception to the rule against hear-' say.
As to the further declarations of W. H. Butler to the effect that he had put Daniel in possession, it need only to be said that their tendency was to prove what was not controverted in the case and what was of detriment rather than advantage to the defendant, to-wit, that Daniel entered and held possession by permission of his father.
On the considerations adverted to first above with the evidence as it was before the jury, the plaintiffs were entitled to the affirmative charge which the court gave; and they would have been none the less so entitled had the testimony of Whit Butler that he “never knew it to be anybody’s lands hut W. H. Butler’s” and of T. J. Lovvorni that he “never heard of anybody claiming the land but W. H. Butler,” been excluded. Hence we need not inquire whether the court’s rulings in respect of said testimony were correct or not.
Plaintiffs and defendant being tenants in common in the land as heirs at law of W. H. Butler, deceased, the effect of the judgment for plaintiffs is to let them into possession with the defendant. As each one of the dispossessed tenants is entitled to be thus let in, it is not material whether all of them have joined in this action.
Affirmed.