This is a statutory action of eject? ment by the appellants against the appellee. The plaintiffs claim as the heirs of Waddy Thompson, and the defendant traces his title through some of the heirs of J. W. Boyd. The evidence is without conflict that originally the land in controversy, which was pine timbered land, without any improvement on it, was owned by J. W. Boyd, and that said Waddy Thompson owned another tract, known as the “Hayden place.”
It is shown by a deed introduced in evidence, that on October 24, 1866, said Waddy Thompson conveyed the Hayden place to said Boyd, reciting a money consideration, and, while the plaintiffs Avere not able to produce any deed from Boyd to Thompson conveying the land in question, several witnesses, including the sons of Boyd, testified that they had heard Boyd say on several occasions that he had traded the land in controversy to Thompson in exchange for the Hayden place, Avhich Thompson had conveyed to him, and that Mr. Thompson “took charge” of the place in question at the same time that Mr. Boyd took charge of the Hayden place, and claimed it as his OAvn during his life. One of the sons of J. ’W. Boyd testified that, at the time that certain parties through whom the defendant claims Avere negotiating”for the land (after his father’s death), he told them that the land did not belong to his father’s estate, but to his uncle Waddy Thompson’s estate, and that he refused to execute a quit-claim deed to it because he knew it belonged to his uncle.
It is true that Avhen the evidence on the part of the plaintiff, claiming by adverse possession, is-wanting entirely in either of the essentials of adverse possession, the court is justified in giving the general charge in favor of the defendant.—Chastang v. Chastang, 141 Ala. 451, 37 South. 799, 109 Am. St. Rep. 45. It is *48true, also, that the facts in regard to cutting timber at different times would not, of themselves, without more, be sufficient to establish adverse possession in Waddy Thompson; but if he “took charge” of the place at the same time that his deed was made to Boyd, and Boyd during his life (from 1866 to 1884) made statements that he did not claim the place, but had traded it to Thompson, and Thompson besides getting the timber, was offering to sell the place, and claiming it as his own, up to the time of his death in 1894, and during that time was making contracts selling timber to be taken off the place generally, without any designation of any particular place, it was a question for the jury to determine whether or not the exchange of the land had been made, and whether the equitable title of Thompson had ripened into a legal title by adverse posession.
The claim of title being established, the question of the notoriety of the claim, by the acts of ownership, is for the benefit of the party against whom the claim of title is asserted, and if the evidence shows that said party not only knew that the other party was claiming to own the land, but acquiesced in the claim by having-sold the land by parol and recognizing the other party as the owner, the same evidence is not required to advise him of the possession by the other party as would be otherwise required. He would have the same notice to the extent of the claim of the other party, who was exercising dominion over a part of the land, as he would have if said party was acting under color of title. “If the owner have actual knowledge that the possession is adverse to his title, the occupancy need not be open, visible and notorious. Notoriety is important only where the adverse character of the possession is to be brought home to the owner by presumption.”—1 Cyc. *49999; Trotter v. Neal 50 Ark. 340, 345, 7 S. W. 384; Clark v. Gilbert, 39 Conn. 94, 97; Dausch v. Crane, 109 Mo. 323, 336, 337, 19 S. W. 61; Thomson v. Thomson, 93 Ky. 436, 441, 442, 20 S. W. 373.
Tlie question as to whether the defendant and those through whom he claimed had acquired title by adverse possession was also for the jury. The evidence as to the character of possession, its exclusiveness, continuance, and notoriety, was not such as to authorize the court to take the determination of the adverse possession from the jury. It results that the court erred in giving the general charge for the defendant.
It is unnecessary'- to discuss the other points made. The judgment of the court is reversed, and the cause remanded.
Reversed and remanded.
Dowdell, C. J., and McClellan and Mayfield, JJ., concur.