Tbe action is statutory ejectment, and this is the fourth appeal from successive judgments for the plaintiff in the trial court.—Napier v. Elliott, 146 Ala. 213, 40 South. 752, 119 Am. St. Rep. 17; s. c., 152 Ala. 248, 44 South. 552; s. c., 162 Ala. 129, 50 South. 148. Plaintiff claims title through two deeds made by her father, Joseph Hughes, in November, 1895, one directly to plaintiff, and the other to her deceased mother, of whom she is the only child and heir. Defendants claim title as the children and the heirs of said Joseph Hughes. The only issue presented on the trial was as to the delivery vel non of the two deeds by said Joseph Hughes in his lifetime.
The assignments of error relate to rulings of the trial court on.the admission and rejection of evidence.
1. The deeds in question were duly acknowledged and bore on their faces the certificates of their registration signed by the probate judge. This was prima facie evidence of their due delivery to or for the grantees named, as many times decided by this Court.—Code, § 3374; Napier v. Elliott, 146 Ala. 213, 40 South. 752, 119 Am. St. Rep. 17. They were properly admitted.
2. Plaintiff was properly permitted to testify to the fact that she had had possession of the deeds, and the time when she got them; this being prima facie evidence of delivery to her by the grantor. And, if with *119his knowledge and tacit permission, it would be relevant to explain his intention as to delivery. It does not appear that this testimony related in any way to a transaction with her deceased father. It was open to defendants to show such a relation by cross-examination of the witness, whereupon their objection on this ground would doubtless have been appropriate.—Morrisett v. Carr, 118 Ala. 585, 23 South. 795. But, on the contrary, it appeared later that she received the deeds from her husband, who had previously received them from the grantor.
3. Plaintiff’s husband, Elliott, was properly allowed to testify that at the time he received the deeds from the grantor, in 1899, the latter instructed him to place the deeds on record. This instruction thus given was a part of the act of delivery relied on by plaintiff, and was competent evidence of the grantor’s intention with respect thereto. The witness was not a party to the suit, and, although he was the husband of plaintiff, he was not thereby disqualified by the statute (Code, § 4007) from testifying as to the transactions with or statements by the deceased grantor.—Henderson v. Brunson, 141 Ala. 674, 37 South. 549; Harraway v. Harraway, 136 Ala. 499, 34 South. 836.
4. There was no valid objection to the testimony of this witness Eliott that he kept the deeds after he had put them on record. His continued custody of them, especially with the knowledge of the grantor, was relevant to the conclusion that the grantor had delivered them to him for the. benefit of his Avife and daughter, rather than for some private and temporary purpose of his own. And it Avas competent to thereby rebut the counter inference that the jury might have drawn had the deeds been returned to the grantor.
*1205. The fact that this witness bought or dealt with 40 acres of the land in question as the property of the grantor in 1898, before the deeds were delivered to him by the grantor, had no possible tendency to contradict or impugn his testimony as a witness; and for no other purpose could that conduct be placed in evidence.—Napier v. Elliott, 162 Ala. 129, 50 South. 148. Hence it was very properly excluded.
6. It was not competent for defendants’ witness Mrs. Baxley to state whether or not, at the two times specified, plaintiff was claiming the land, since it would have been but a conclusion on her part.—Ashford v. Ashford, 136 Ala. 631, 34 South. 10, 96 Am. St. Rep. 82.
If it be contended that these questions called for a negation of any actually spoken claim by plaintiff on those occasions, the answer is that the circumstances did not impose upon her the duty of then making such a claim, if indeed its omission was not in accord with a truer sense of decorum. Her silence admitted nothing, and could not be considered by the jury.
But the rejection of these questions could not be complained of in any case, for the witness thereafter stated, without objection from plaintiff, that “plaintiff never did claim the land at all until she brought this suit.”
7. The widow and heirs of Joseph Hughes, including plaintiff and defendants, entered into a written agreement as follows: “That we will put the things at auction and let the heirs bid off such as they want, with the further agreement that we will not bid against each other, but will give a fair price for each article bought.” “Things” and “articles” refer to chattels, and not by any possibility to real estate. The court properly refused to allow defendants’ witness McKay, who drafted the agreement, to testify that this agreement included *121the real estate, and properly rejected the agreement itself as being wholly irrelevant to the issue.
8. Defendants’ witness Josiah Hughes, a son of the grantor, testified that his stepmother, Nancy Hughes, gave him the deeds just after his father’s death in 1901, telling him to “take them, as he knew what they were for.” On motion of plaintiff, this statement of Mrs. Hughes was excluded, and there was no error in this. The estate of Mrs. Hughes was directly concerned, to the extent of the land conveyed to her; and, although the witness was not a party to the suit, the invalidation of these deeds and the defeat of plaintiff’s suit was none the less to his pecuniary advantage as a cotenant of defendants. Hence the witness came directly within the ban of the statute (Code, § 4007), and could not testify as to statements by the deceased Mrs. Hughes.
Of course, this objection would not apply in so far as the deed to plaintiff was concerned; but, as to that deed, her statement was res inter alios acta, and not admissible as against plaintiff, who was in no way bound by it.
9. Whether at some undefined time after the execution of the deeds in 1895, the grantor Avas heard to say that lie had searched for the deeds and could not find them, cannot be regarded as material to the question of an alleged delivery of the deeds in 1899. To be relevant, the time of the alleged search must at least have been placed later than such delivery. But, Avhenever made, we think it Avas not material; and also that it was but hearsay, and not admissible under any exception to the hearsay rule. He might thus make evidence against himself or his successors in interest, but not in favor of either.
10. Whether defendants’ witness Sanders “had a conversation” with the grantor about a month before he made the deeds was wholly irrelevant in the absence of *122any indication as to the subject-matter of the conversation. For excluding such' a question, the trial court cannot be put in error.—Phoenix Ins. Co. v. Moog, 78 Ala. 284, 308, 56 Am. Rep. 31. And, in any case, not being part of the res gestae, it was objectionable as hearsay.
11. Plaintiff’s witness Rogers was allowed to testify that, when he leased some timber on the land for turpentine purposes, in 1899 or 1900, he went to the grantor to make the lease and get the numbers, and the grantor told him he “would have to go to Bob and Minnie, as they had the deeds.” This declaration of the grantor was clearly competent as an admission against his interest. It showed, also, that plaintiff and her husband then had the lawful possession of the deeds with the knowledge and approval of the grantor — which fact was of the very essence of the issue, for the witness stated that he then went to Bob and Minnie Elliott and found the deeds in their possession.
12. The judgment in the court below, following the verdict, was for all the land sued for. It is noAV urged in this court that the judgment Avas erroneous in that plaintiff’s deed described, not all of a certain 40, but all of the 40 “on the east side” of a certain road. It may be remarked in passing that there is nothing in the record to shoAV that the road mentioned is not the western boundary of the 40, or that the entire 40 is not to the east of the road, and hence the verdict and judgment are not shOAvn to be excessive or erroneous. But, apart from this consideration, the judgment necessarily followed the verdict, and defendants cannot raise such a question for the first time in this court. It should have been raised in the trial court in some Avay, as by a request for instructions to the jury limiting the recovery to the proof, or by motion to set aside the verdict and *123grant a new trial.—Drake v. Johnston, 50 Ala. 1; Sampson v. State, 54 Ala. 241; Gilliland v. Dunn. 136 Ala. 327, 34 South. 25.
We find no error in the record, and the judgment will be affirmed.
Affirmed.
All the Justices concur.