COLEMAN, J.
— The suit was in ejectment commenced in December, 1882, by appellee against Alexander M. Steed and his wife, Susan E. Steed. In November, 1883, the defendants filed separate pleas to the original complaint. The record shows that at the July term, 1884, the plaintiff by leave of the court assigned “additional grounds of demurrer to the pleas of defendant.” There are no other assignments of cause of demurrer in the record, and the record fails to show any ruling of the court upon the demurrer or causes of demurrer to defendant’s plea.
At the April term, 1889, the plaintiff amended his complaint by adding to the lands sued for, the N. E. 1-4 of the S. E. 1-4 of Section four, of Township twenty, Bange seven.
The record fails to show that the defendants pleaded to the amended complaint. The judgment entry recites, “Come the parties in person and by attorneys and upon issue being joined, come a jury,” &o. When the pleadings are in this condition this court will presume on appeal that plaintiff waived his right to have his demurrer to defendant’s pleas passed upon by the court. — Marcy v. Howard, 91 Ala. 137. It will be further presumed that as to the land sued for in the original complaint, issue was joined upon the pleas filed to the original complaint, and as to the forty additional acres sued for in the complaint as amended “issue” was joined upon the general issue of “not guilty.” — Odum v. Rutledge & Julian R. R. Co., 94 Ala. 488. s. c. 10 So. Rep. 222; May v. Sharp, 49 Ala. 140; Hatchett v. Moulton, 76 Ala. 410; Petty v. Dill, 53 Ala. 645.
The plaintiff demanded a struck jury. Thereupon the court inquired of the twenty-four jurors from whom the struck jury was to be empannelled, if any were related to either party, or were witnesses in the case, or had served as a juror in the case at a former trial, and four of the jurors [578]*578having answered affirmatively, they were excused by the court ex mero motu, and four others were summoned in their place. This is assigned as error. The exception is without merit. Neither party, because a struck jury is demanded by one of the parties, is subjected to the peril of having a juror to try his case who is disqualified to sit as a juror, and it was entirely proper for the court to ascertain if any were disqualified before the parties were required to strike from the list such as were deemed objectionable. — Dothard v. Denson, 72 Ala. 543; Davis v. Hunter, 7 Ala. 137. The defendant admitted, subject to legal objection, for the purpose of a trial, that an absent witness would testify to certain facts which were reduced to writing. "When offered in evidence by plaintiff, the defendant interposed an objection to a portion of the written statement. The court permitted the plaintiff to amend the statement against the objection of the defendant, but gave the defendant the right to consent or object to its admission as amended. "Without waiving his objection to the allowance of the amendment, the defendant consented to the admission of the statement as amended. The objection was trivial. The court did not require the defendant to proceed with the trial upon the amended showing. Its admission was still optional with him.
Possession of land is a fact to which a witness may testify, and not strictly a conclusion of law, as insisted upon by counsel for appellant. — Eagle, & Phoenix Manfg. Co. v. Gibson, 62 Ala. 372. A witness testifying in regard'to possession as a fact, is subject ro cross-examination, .and the character of the possession, its extent, or whether there was in fact any possession, may be fully investigated. A party who voluntarily deprives himself of the right to cross-examine a witness by admitting that an absent witness would testify to a fact, legal in itself, can not afterwards complain. It was competent for the witness to testify, as a fact, that he “saw the defendant Steed pay his father $600.00 for a half interest in the land and a half interest in the mill.”
The objection to the following statement in the admission was well taken. “I saw my father sign a receipt for the money and give it to Steed.” • The receipt itself was the best evidence that it was a receipt for the money. If plaintiffs had notified the defendants to produce the receipt as required in such cases, their failure to do so would have justified parol proof of its contents.
The difference between the two principles consists in this: The payment of the money was a fact testified to indepen[579]*579dent of the receipt, and which was capable of parol proof. Wiggins v. Pryor, 3 Por. 430; P. & M. Bank v. Willis, 5 Ala. 770 ; Johnson v. Cunningham, 1 Ala. 249; Hogan v. Reynolds, 8 Ala. 59. But when the witness went further and stated that he saw a receipt for the money signed, he undertook to give the contents of the receipt, and the receipt itself was the better evidence.
The witness Pruitt testified that he purchased forty acres of the mill land for one hundred and thirty-five dollars, that the contract was made with Thos. Bonner, Sr., and A. M. Steed, husband of Susan E. Steed, and that he paid Thos. Bonner seventy-five dollars of the purchase-money and Susan E. Steed sixty dollars.
The plaintiffs then introduced a deed in evidence executed by Thos. Bonner and Susan E. Steed, conveying the forty acres to Pruitt. The husband, A. M. Steed, did not join in the execution of this deed with his wife. The forty acres sold to Pruitt is not involved in this suit, and the deed was not introduced as we understand its purpose, to show that it was a sufficient instrument to convey Mrs. Steed’s interest. Mrs. Steed claimed the whole tract under one and the same purchase from her father, Thos. Bonner, Sr., and set up in her defense adverse possession of the whole tract. Any admission by her during the time that plaintiffs asserted title made in disparagement of her own title, is legal evidence against her. — 1 Brickell, p. 834, § 433. And her admission that Thomas Bonner, Sr., owned a half interest in the land, and was in possession of it, would be legal evidence against her. The instrument, though not effective as a legal conveyance or muniment of title because of the failure of the husbaud to join her in its execution (Callen v. Rottenberg, 76 Ala. 173; Garrett v. Lehman, Durr & Co., 61 Ala. 394), nevertheless fully recognizes and admitted the interest of Thomas Bonner, Sr., in the land, and tended to show that she only claimed a half interest.in the land. Proof of her voluntary signature to the instrument would be sufficient to let in the recitals in the instrument against her as her admission. It must be kejpt in mind that defendant had no written title to the land from her father. Her claim was that she went into possession tinder a purchase from him, having paid all the purchase-money, and that she held adverse possession for more than ten years. These were the grounds of contention. The grounds of objection to this testimony were not specified, and for this further reason might have been overruled.
What we have said in regard to the deed applies to the [580]*580mortgage. The mortgage made by her and her husband was duly acknowledged before a proper officer. The mortgage recites that Susan Steed and one Gaston (who at that time had purchased plaintiff’s interest) owned the land. It says the “Steed and Gaston mill” “situated on land belonging to Susan El Steed and D. A. Gaston.”
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COLEMAN, J.
— The suit was in ejectment commenced in December, 1882, by appellee against Alexander M. Steed and his wife, Susan E. Steed. In November, 1883, the defendants filed separate pleas to the original complaint. The record shows that at the July term, 1884, the plaintiff by leave of the court assigned “additional grounds of demurrer to the pleas of defendant.” There are no other assignments of cause of demurrer in the record, and the record fails to show any ruling of the court upon the demurrer or causes of demurrer to defendant’s plea.
At the April term, 1889, the plaintiff amended his complaint by adding to the lands sued for, the N. E. 1-4 of the S. E. 1-4 of Section four, of Township twenty, Bange seven.
The record fails to show that the defendants pleaded to the amended complaint. The judgment entry recites, “Come the parties in person and by attorneys and upon issue being joined, come a jury,” &o. When the pleadings are in this condition this court will presume on appeal that plaintiff waived his right to have his demurrer to defendant’s pleas passed upon by the court. — Marcy v. Howard, 91 Ala. 137. It will be further presumed that as to the land sued for in the original complaint, issue was joined upon the pleas filed to the original complaint, and as to the forty additional acres sued for in the complaint as amended “issue” was joined upon the general issue of “not guilty.” — Odum v. Rutledge & Julian R. R. Co., 94 Ala. 488. s. c. 10 So. Rep. 222; May v. Sharp, 49 Ala. 140; Hatchett v. Moulton, 76 Ala. 410; Petty v. Dill, 53 Ala. 645.
The plaintiff demanded a struck jury. Thereupon the court inquired of the twenty-four jurors from whom the struck jury was to be empannelled, if any were related to either party, or were witnesses in the case, or had served as a juror in the case at a former trial, and four of the jurors [578]*578having answered affirmatively, they were excused by the court ex mero motu, and four others were summoned in their place. This is assigned as error. The exception is without merit. Neither party, because a struck jury is demanded by one of the parties, is subjected to the peril of having a juror to try his case who is disqualified to sit as a juror, and it was entirely proper for the court to ascertain if any were disqualified before the parties were required to strike from the list such as were deemed objectionable. — Dothard v. Denson, 72 Ala. 543; Davis v. Hunter, 7 Ala. 137. The defendant admitted, subject to legal objection, for the purpose of a trial, that an absent witness would testify to certain facts which were reduced to writing. "When offered in evidence by plaintiff, the defendant interposed an objection to a portion of the written statement. The court permitted the plaintiff to amend the statement against the objection of the defendant, but gave the defendant the right to consent or object to its admission as amended. "Without waiving his objection to the allowance of the amendment, the defendant consented to the admission of the statement as amended. The objection was trivial. The court did not require the defendant to proceed with the trial upon the amended showing. Its admission was still optional with him.
Possession of land is a fact to which a witness may testify, and not strictly a conclusion of law, as insisted upon by counsel for appellant. — Eagle, & Phoenix Manfg. Co. v. Gibson, 62 Ala. 372. A witness testifying in regard'to possession as a fact, is subject ro cross-examination, .and the character of the possession, its extent, or whether there was in fact any possession, may be fully investigated. A party who voluntarily deprives himself of the right to cross-examine a witness by admitting that an absent witness would testify to a fact, legal in itself, can not afterwards complain. It was competent for the witness to testify, as a fact, that he “saw the defendant Steed pay his father $600.00 for a half interest in the land and a half interest in the mill.”
The objection to the following statement in the admission was well taken. “I saw my father sign a receipt for the money and give it to Steed.” • The receipt itself was the best evidence that it was a receipt for the money. If plaintiffs had notified the defendants to produce the receipt as required in such cases, their failure to do so would have justified parol proof of its contents.
The difference between the two principles consists in this: The payment of the money was a fact testified to indepen[579]*579dent of the receipt, and which was capable of parol proof. Wiggins v. Pryor, 3 Por. 430; P. & M. Bank v. Willis, 5 Ala. 770 ; Johnson v. Cunningham, 1 Ala. 249; Hogan v. Reynolds, 8 Ala. 59. But when the witness went further and stated that he saw a receipt for the money signed, he undertook to give the contents of the receipt, and the receipt itself was the better evidence.
The witness Pruitt testified that he purchased forty acres of the mill land for one hundred and thirty-five dollars, that the contract was made with Thos. Bonner, Sr., and A. M. Steed, husband of Susan E. Steed, and that he paid Thos. Bonner seventy-five dollars of the purchase-money and Susan E. Steed sixty dollars.
The plaintiffs then introduced a deed in evidence executed by Thos. Bonner and Susan E. Steed, conveying the forty acres to Pruitt. The husband, A. M. Steed, did not join in the execution of this deed with his wife. The forty acres sold to Pruitt is not involved in this suit, and the deed was not introduced as we understand its purpose, to show that it was a sufficient instrument to convey Mrs. Steed’s interest. Mrs. Steed claimed the whole tract under one and the same purchase from her father, Thos. Bonner, Sr., and set up in her defense adverse possession of the whole tract. Any admission by her during the time that plaintiffs asserted title made in disparagement of her own title, is legal evidence against her. — 1 Brickell, p. 834, § 433. And her admission that Thomas Bonner, Sr., owned a half interest in the land, and was in possession of it, would be legal evidence against her. The instrument, though not effective as a legal conveyance or muniment of title because of the failure of the husbaud to join her in its execution (Callen v. Rottenberg, 76 Ala. 173; Garrett v. Lehman, Durr & Co., 61 Ala. 394), nevertheless fully recognizes and admitted the interest of Thomas Bonner, Sr., in the land, and tended to show that she only claimed a half interest.in the land. Proof of her voluntary signature to the instrument would be sufficient to let in the recitals in the instrument against her as her admission. It must be kejpt in mind that defendant had no written title to the land from her father. Her claim was that she went into possession tinder a purchase from him, having paid all the purchase-money, and that she held adverse possession for more than ten years. These were the grounds of contention. The grounds of objection to this testimony were not specified, and for this further reason might have been overruled.
What we have said in regard to the deed applies to the [580]*580mortgage. The mortgage made by her and her husband was duly acknowledged before a proper officer. The mortgage recites that Susan Steed and one Gaston (who at that time had purchased plaintiff’s interest) owned the land. It says the “Steed and Gaston mill” “situated on land belonging to Susan El Steed and D. A. Gaston.”
It may be that as a mortgage it was inoperative to convey the wife’s half interest, but as an admission that Gaston owned a half interest in the land, it was unequivocal and solemnly made in writing. A verbal statement to that effect, or a letter written by her, upon proof of her signature, would be admissible evidence against her, and an instrument signed and solemnly acknowledged and the signature not denied, can not be iess effective as an admission that Gaston was the owner of an interest in the land.
Declarations of a party in possession of land, declaratory of the character in which he holds or claims made in good faith are admissible in evidence, in an issue of disputed ownership, no matter who may be the parties to the litigation. — Daffron v. Crump, 69 Ala. 79; Jones v. Pelham, 84 Ala. 210; Humes v. O'Bryan, 74 Ala. 64; Lucy v. Tenn. & Coosa R. R. Co., 92 Ala. 250.
Under these principles of law the declarations of the witness Treadwell were properly admitted. In the years 1876 and 1877 the lands were assessed by A. M. Steed as belonging to Steed & Bonner, and in 1878 Gaston & Steed each gave in the one-half interest in the lands for taxes. We think these assessments competent evidence against A. M. Steed as an admission, or a recognition on his part, that Bonner claimed and owned an interest in the lands during the years 1876 and 1877, and in 1878 that Gaston, who claimed as a sub-vendee of Bonner, owned a half interest in the lands. The objection of each of the defendants was general, and the court was not requested to limit the admission to A. M. Steed. As to forty acres of the land as we have seen only the general issue can be considered as having been pleaded. We find no error in the ruling of the court sustaining objections to the testimony of Susan E. Steed as to transactions with Thos. Bonner, Si'., deceased, in his lifetime. — Code, 2675.
We have often held that if issue was joined upon an immaterial plea the defendant had the right to introduce evidence in support of it, and to ask instruction upon the evidence. — Cresent Brewing Co. v. Handley, 90 Ala. 486; Mudge v. Treat, 57 Ala. 1; Allison v. Little, 93 Ala. 150; 90 Ala. 1; 89 Ala. 625. One of the defective pleas in this case filed in [581]*581answer to the original complaint and upon which issue was joined was the coverture of Susan E. Steed. This plea, although it was without merit, was fully sustained by the proof, and if the court had been requested to charge the jury to find for the defendant as to the one hundred and sixty acres sued for in the original complaint to which this insufficient plea was filed, it should have been given, but sustaining this plea by proof did not justify the charge as to the whole land sued for as shown by the amended complaint, to which this plea was never filed. There was no error therefore in refusing the general charges Nos. 1 and 2 requested by the defendants. The court is not required to give a charge which unduly singles out and emphasizes the testimony of any particular witness or any particular facts, and which tends to obscure and minimize other material evidence bearing on the same question, and a charge is argumentative in its character which directs the jury to look to certain facts as tending towards certain conclusions. — Bell v. Kendall, 93 Ala. 489; Ala. Gr. So. R. R. Co. v. Sellers, 93 Ala. 9; Jackson v. Robinson, 93 Ala. 157; Ala. Gr. So. R. R. Co. v. Hill, 93 Ala. 516; Eastis v. Montgomery, Ib. 293. A charge argumentative or misleading, should be refused, but if given, and it asserts a correct proposition of law and not entirely abstract and its misleading tendencies might have been remedied by an explanatory charge, the giving of it, will not work a reversal. — Schaungut v. udel, 93 Ala. 303 ; Eastis v. Montgomery, supra.
Charges Nos. 3, 6, 7, 8, 9, 10, are subject to one or the other of these defects. Charge 8, is further objectionable as assuming that defendants were in open, adverse possession of all the land prior to the time Gaston cultivated a part of the land. Charge 9 also involves an invasion of the province of the jury. Charge No. 11, is erroneous as a proposition of law and is misleading.
Plaintiff may have at one time contracted to sell and actually sold the land to Gaston, but not having made him a deed, if the sale was cancelled subsequently, the legal title remaining in plaintiff, the mere agreement to sell or sale would not prevent the maintenance of the suit, in ejectment. Defendants in no way undertook to connect their title to an outstanding title in Gaston. Charge No. 12 was properly refused. There is no evidence in the record of the payment or non-payment of taxes and so far as' predicated upon this hypothesis, the charge was abstract. The law itself constitutes the husband as the agent of the wife, when living together as husband and wife, to list her property for assess[582]*582ment fox taxation. — Code of 1876, § 313 ; Code of 1886, §477. So far as the assessment may be regarded as evidence at all for any purpose when made by the husband for the wife, and in her name, prima facie it has ¡.lie same effect, as if made in regard to his own property. Listing her property wrongfully in his own name or in that of another would not conclude her from asserting and proving her title, but the charge as framed, is too broad.
In addition there is some evidence tending to show that the assessments, sometimes were made by the husband in the dwelling where they both lived, and when the wife was at. home and about the house. We do not perceive upon what grounds the court refused to give charge No. 4. It simply requests the court to charge the jury that the burden of proof was upon the plaintiff to reasonably satisfy the jury that he was entitled to recover under the rules of law, declared by the court. In ejectment the plaintiff depends upon the strength of his own title to recover and not upon the weakness of that of his adversary,, and in all cases where affirmative proof is necessary-to authorize a recovery, the burden rests upon the plaintiff to make the proof.
Charge No. 5, as applicable to the evidence did not assert a correct principle of law, and was also misleading. It is true that when plaintiff is required to reasonably satisfy the jury of the existence of a fact, to entitle him to recover, and the testimony is evenly balanced or in equilibrium he has failed to make out his case and the verdict must be against him.— Vandevenler v. Ford, 60 Ala. 615 ; Lindsay v. Ferry, 1 Ala. 204; Harris v. Bell, 27 Ala. 522. But the charge ought not to be given where presumptions of law, from proven facts authorize plaintiff to recover, and the burden is on defendant by counter evidence to overcome the presumptions against him. Here the plaintiff and defendant both claim title from Thos. Bonner, Sr., the plaintiff by deeds of conveyance — the defendant held no paper title, but claimed under a parol purchase, possession, and the payment of the purchase-money, and an adverse possession of ten years under the parol purchase. To overcome the legal title of plaintiff thus acquired, the burden was on defendant to establish her defense. The evidence in support of and against the theory of the defendant in such a case may be equally balanced and yet plaintiff might be entitled to a verdict. The opinion covers all the assignments of error.
Eeversed and remanded.