TYSON, J.
This is the third appeal in this case. The opinions delivered on the former appeals may be found in 127 Ala. 445, 30 South. 61, and 37 South. 424.
The first' assignment of error is based on the refusal of the trial court to permit plaintiff to prove a certain declaration of Ben Johnson, the patentee and former owner of the land, who is shown to have died in 1878, to his son. At the time this declaration was made, Johnson was not living on the land and did not claim to own it. It is true he was on it; but, on the facts stated in the'predicate for the introduction of. the declaration, it is apparent that he was not in possession of it. The ruling of the court was therefore correct.
Johnson having died long before this suit was instituted, it is obvious that no recovery can be had upon the demise laid in him. He therefore was not a party to the suit nor interested in the result of it. The objection to the competency of Maddox as a witness, based upon Johnson’s interest, is therefore without merit.
The instrument executed by Maddox to Edmondson, describing the land, which seems to have been admitted by the court as color of title, contains no words of transfer, but does contain'a warranty of title. In this respect it differs from the one in Webb v. Mullins, 78 Ala. 111, and is in all'respects similar to the one in Brown v. Manter, 53 Am. Dec. 223. By force of the warranty Maddox was forever estopped to claim title to the land against Edmondson. If he had the title to the land when this instrument was executed, he could never recover it from Edmondson; nor could he ■ defeat Edmondson’s right of recovery against him after its execution. And if he had not the title at the time of its execution, but afterwards acquired it, he could never assert it against Edmondson. In consonance with this and as supporting it, we quote what was said in Threefoot Bros. v. Hillman, 130 Ala. 255, 30 South. 517, 89 Am. St. Rep. [565]*56539: “Such estoppel, growing out of a written contract and not resting in pais, would have the effect to pass and vest the legal title, which, of course, can always be asserted in a court of law” — which is fully sustained by the cases cited in support of it. Such being the legal effect of the warranty, all the essential elements of color of title are shown by the instrument. It was in recognition of this principle that the court held, in Brown v. Man ter, the deed to be admissible in evidence. Furthermore, the instrument was clearly competent as tending to show that Edmondson asserted a claim of ownership to the land which is one of the essential elements of adverse possession. — Doe ex. dem. Anniston City Land Co. v. Edmondson, supra ; Sedgwick & Wait on Trial of Title to Land, § 768.
In order to deprive Edmondson of the right to testify that he gave Costner permission to make charcoal on the land, and to put the court below in error in permitting him to so testify, it is obligatory on plaintiff to show that Costner was acting in some representative or fiduciary capacity to the Woodstock Iron Company. On the facts stated in the record this was not shown.
There was no error in permitting the witness Strickland to testify that in 1874 it was generally known in the vicinity of the land in dispute that Edmondson claimed the title to it. This was competent to show the notoriety of his claim, but not to show his title. — 1 Cyc. 1151 ; Woods v. Montevallo C. & T. Co., 84 Ala. 560, 3 South. 475, 5 Am. St. Rep. 393 ; Tenn. C. I. & R. R. Co. v. Linn, 123 Ala. 112, 26 South. 245, 82 Am. St. Rep. 108.
It appears that the -statement of Catherine Johnson, objected to by the plaintiff, was part of the conversation brought out- by it on a cross-examination of Edmondson. There was no error committed in overruling the objection.
During the progress of the trial the plaintiff introduced in evidence the original tax assessment books of Calhoun county for a number of years, beginning with 1868 and including the year 1887, showing that during none of these years was the land in controversy assessed by the defendant. The entries required on these books [566]*566are made by the tax assessor from the assessment lists. In truth they are nothing more than copies of the assessment lists. Manifestly, the only way it could be shown by these books that the land in controversy was not assessed to or by defendant for taxes was that the land did not appear upon them along with the other property assessed to him. Clearly this showing is not conclusive upon Edmondson, so as to deprive him of the right to show that in fact it xvas assessed. ITe cannot be held to be concluded by any mistake the assessor may have made by omitting to enter the land upon the books, and therefore had the light to show, if he could, that he assessed the land for taxes. And this he could do by his own testimony; the assessment list from which the books were made not being in his possession and presumptively destroyed.
The statement of Margaret Ford, to which objection was interposed, Avas clearly competent. It tended to sIioav that her husband was claiming the land as his oaaui, a.necessary ingredient of .adverse possession.- — Bar-ron v. Barron, 122 Ala. 194, 25 South. 55 ; 1 Cyc. pp. 1047, 1048.
This brings us to a consideration of the Avritten charges given and refused by the court.
Charge 1, refused to the plaintiff, assumed that Edmondson failed to assess for taxes the land in controversy. With Edmondson’s testimony in that he did assess them duirng certain years, the charge Aims clearly bad, and therefore propery refused.
Charge 2, given at defendant’s request, Avas held, on the first appeal in this case, to have been properly given. The objection.now urged against its correctness is that the patent to Johnson Avas color of title in those lessors avIio succeeded to his possession. The patent to Johnson operated to invest the legal title to the land in him, but, being dead Ayhen the action Avas begun, no recovery could be had on the demise laid in him. No conveyance is shown to have been executed by him to the'land to the Woodstock Iron Company, or any one else. The legal title to it, therefore, descended to his heirs at laiv, and is still in them unless it has been divested by adverse [567]*567possession. The patent to him did not operate as color of title in plaintiff or any of its demisors. The charge was proper.
Charge 5, given at defendant’s request, was held proper on former appeal. — 127 Ala. 445, 30 South. 61. It seems, however, to have escaped the attention of the court that it submitted a question of law to the jury. Whether the Woodstock Iron Company had conveyed its whole title'to the land before the action was brought ivas clearly a question of law for the court. The evidence undisput-edly established that, when the deed was executed by this company to the Anniston City Land Company, Edmondson 'was in the adverse possession of the land attempted to be conveyed by it. The deed, therefore, as matter of law, was void against Edmondson, and the jury should have been so instructed upon a written request of defendant. It has been uniformly held by this court that it is erroneous to refer a question of law to the jury. — 2 Mayfield’s Dig. p. 577, § 270, et seq.
Charge 7 was proper. Charges 15 and 16 are the same as charges 41 and 42 reviewed by us on former appeal. Of them we said they were free from error.
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TYSON, J.
This is the third appeal in this case. The opinions delivered on the former appeals may be found in 127 Ala. 445, 30 South. 61, and 37 South. 424.
The first' assignment of error is based on the refusal of the trial court to permit plaintiff to prove a certain declaration of Ben Johnson, the patentee and former owner of the land, who is shown to have died in 1878, to his son. At the time this declaration was made, Johnson was not living on the land and did not claim to own it. It is true he was on it; but, on the facts stated in the'predicate for the introduction of. the declaration, it is apparent that he was not in possession of it. The ruling of the court was therefore correct.
Johnson having died long before this suit was instituted, it is obvious that no recovery can be had upon the demise laid in him. He therefore was not a party to the suit nor interested in the result of it. The objection to the competency of Maddox as a witness, based upon Johnson’s interest, is therefore without merit.
The instrument executed by Maddox to Edmondson, describing the land, which seems to have been admitted by the court as color of title, contains no words of transfer, but does contain'a warranty of title. In this respect it differs from the one in Webb v. Mullins, 78 Ala. 111, and is in all'respects similar to the one in Brown v. Manter, 53 Am. Dec. 223. By force of the warranty Maddox was forever estopped to claim title to the land against Edmondson. If he had the title to the land when this instrument was executed, he could never recover it from Edmondson; nor could he ■ defeat Edmondson’s right of recovery against him after its execution. And if he had not the title at the time of its execution, but afterwards acquired it, he could never assert it against Edmondson. In consonance with this and as supporting it, we quote what was said in Threefoot Bros. v. Hillman, 130 Ala. 255, 30 South. 517, 89 Am. St. Rep. [565]*56539: “Such estoppel, growing out of a written contract and not resting in pais, would have the effect to pass and vest the legal title, which, of course, can always be asserted in a court of law” — which is fully sustained by the cases cited in support of it. Such being the legal effect of the warranty, all the essential elements of color of title are shown by the instrument. It was in recognition of this principle that the court held, in Brown v. Man ter, the deed to be admissible in evidence. Furthermore, the instrument was clearly competent as tending to show that Edmondson asserted a claim of ownership to the land which is one of the essential elements of adverse possession. — Doe ex. dem. Anniston City Land Co. v. Edmondson, supra ; Sedgwick & Wait on Trial of Title to Land, § 768.
In order to deprive Edmondson of the right to testify that he gave Costner permission to make charcoal on the land, and to put the court below in error in permitting him to so testify, it is obligatory on plaintiff to show that Costner was acting in some representative or fiduciary capacity to the Woodstock Iron Company. On the facts stated in the record this was not shown.
There was no error in permitting the witness Strickland to testify that in 1874 it was generally known in the vicinity of the land in dispute that Edmondson claimed the title to it. This was competent to show the notoriety of his claim, but not to show his title. — 1 Cyc. 1151 ; Woods v. Montevallo C. & T. Co., 84 Ala. 560, 3 South. 475, 5 Am. St. Rep. 393 ; Tenn. C. I. & R. R. Co. v. Linn, 123 Ala. 112, 26 South. 245, 82 Am. St. Rep. 108.
It appears that the -statement of Catherine Johnson, objected to by the plaintiff, was part of the conversation brought out- by it on a cross-examination of Edmondson. There was no error committed in overruling the objection.
During the progress of the trial the plaintiff introduced in evidence the original tax assessment books of Calhoun county for a number of years, beginning with 1868 and including the year 1887, showing that during none of these years was the land in controversy assessed by the defendant. The entries required on these books [566]*566are made by the tax assessor from the assessment lists. In truth they are nothing more than copies of the assessment lists. Manifestly, the only way it could be shown by these books that the land in controversy was not assessed to or by defendant for taxes was that the land did not appear upon them along with the other property assessed to him. Clearly this showing is not conclusive upon Edmondson, so as to deprive him of the right to show that in fact it xvas assessed. ITe cannot be held to be concluded by any mistake the assessor may have made by omitting to enter the land upon the books, and therefore had the light to show, if he could, that he assessed the land for taxes. And this he could do by his own testimony; the assessment list from which the books were made not being in his possession and presumptively destroyed.
The statement of Margaret Ford, to which objection was interposed, Avas clearly competent. It tended to sIioav that her husband was claiming the land as his oaaui, a.necessary ingredient of .adverse possession.- — Bar-ron v. Barron, 122 Ala. 194, 25 South. 55 ; 1 Cyc. pp. 1047, 1048.
This brings us to a consideration of the Avritten charges given and refused by the court.
Charge 1, refused to the plaintiff, assumed that Edmondson failed to assess for taxes the land in controversy. With Edmondson’s testimony in that he did assess them duirng certain years, the charge Aims clearly bad, and therefore propery refused.
Charge 2, given at defendant’s request, Avas held, on the first appeal in this case, to have been properly given. The objection.now urged against its correctness is that the patent to Johnson Avas color of title in those lessors avIio succeeded to his possession. The patent to Johnson operated to invest the legal title to the land in him, but, being dead Ayhen the action Avas begun, no recovery could be had on the demise laid in him. No conveyance is shown to have been executed by him to the'land to the Woodstock Iron Company, or any one else. The legal title to it, therefore, descended to his heirs at laiv, and is still in them unless it has been divested by adverse [567]*567possession. The patent to him did not operate as color of title in plaintiff or any of its demisors. The charge was proper.
Charge 5, given at defendant’s request, was held proper on former appeal. — 127 Ala. 445, 30 South. 61. It seems, however, to have escaped the attention of the court that it submitted a question of law to the jury. Whether the Woodstock Iron Company had conveyed its whole title'to the land before the action was brought ivas clearly a question of law for the court. The evidence undisput-edly established that, when the deed was executed by this company to the Anniston City Land Company, Edmondson 'was in the adverse possession of the land attempted to be conveyed by it. The deed, therefore, as matter of law, was void against Edmondson, and the jury should have been so instructed upon a written request of defendant. It has been uniformly held by this court that it is erroneous to refer a question of law to the jury. — 2 Mayfield’s Dig. p. 577, § 270, et seq.
Charge 7 was proper. Charges 15 and 16 are the same as charges 41 and 42 reviewed by us on former appeal. Of them we said they were free from error. But it is now contended that the evidence on this trial tends to show that the instrument from Maddox to Edmondson, upon which the. latter relies as color of title, while purporting to be executed in 1868, was really executed in 1894 and dated back for the purpose of giving color of title to Edmondson from 1868. Conceding this to be an indisputable fact, the instrument Avas color of title from the date it Avas really executed. The antedating of it did not destroy its binding efficacy betAveen the parties. It did not make it a forgery by Edmondson. It is true that if it Avas executed in 1894, and not in 1868, it did not have the effect of extending Edmondson’s possession beyond his posscssio pedis during the years elapsing between those dates; but this does not prevent it from being color of title from 1894 on. In other words, the dating of the instrument back did not have the effect of making Edmondson a trespasser upon the land after its execution. On the other hand, it relieved him of being a trespasser and the consequences floAving therefrom. [568]*568Having possession when this action was begun, under color of title, and under a purchase from Maddox, he may avail himself, no estoppel being shown, of the fact that the legal title to the land Avas in the heirs of Johnson and thereby put the plaintiff to proof of its -title by adverse possession; and unless the plaintiff has established such title in one of the lessors (except Johnson) named in the Amrious demises laid in its complaint, it cannot recover. — -10 Am. & Eng. Ency. Law (2d Ed.) pp. 468-488, and the Alabama cases cited in note 3 on page 486. The charges were proper.
The only attack made upon the correctness of charge 19 is based upon the proposition that the instrument from Maddox to Edmondson is not color of title. Having shown that it is the attack must fail.
It requires no comment to sustain the correctness of charges numbered 22 and 27. There are several other charges given at defendant’s request, but the giving of them is not insisted On as error.
Reversed and remanded.
Haralson, Doavdell, Simpson, Anderson, and Den-son, JJ., concur.