TYSON, J.
It appears without dispute that in the spring of 1865, the plaintiff, who was a farmer by occupation, acquired the possession of one hundred acres of the land in controversy from his brother by an exchange for other lands. This exchange was not evidenced by any writing, but the plaintiff went into the actual possession of the land and made some improvement by clearing and cultivation and continued to clear, fence and'cfiltivate the tillable portion, increasing the acreage of tillable land to sixteen acre's. The remaining portion of the land ivas uncleared, grown up in trees and other growth,-wild, mountainous and unfit for cultivation, from which he got, as he needed it during each of these years, his fire wood, rails, timber for his own use, and cut therefrom frequently timber which he disposed of to others. There were three houses .upon the tract which were occupied by tenants of plaintiff from 1865 to 1868, when they were destroyed. The continued use of the land under his contract of exchange, in the manner indicated above, in conne'ction with the. lands adjoining owned by him upon which he lived, was exercised by him uninterruptedly until the year 1876, when the testimony offered by the defendant tended to show, which however was disputed, that he ceased to cultivate the fields, and the fences around the cultivable lands were allowed to fall down in places, and shrubbery was permitted to grow up on them, until the year 1889, when he rebuilt the fences and a new house and enclosed a yard around it, to be used by his son as his tenant. It was also proved without dispute that plaintiff’s brother claimed title to the land sued for under a purchase by him from the township trustees, some time prior to its exchange to the plaintiff, and that he Avas in possession of it at the time' the exchange was made claiming under his purchase. It Avas also Avithout dispute that plaintiff’s brother never claimed these lands after the exchange, and that it' Avas generally known in the neighborhood that plaintiff claimed to own the lands, and that his possession Avas neArer interrupted by any one until the defendant brought its action in ejectment against him in 1894, and obtained a judgment for all the land except that in cultivation and enclosed.
[128]*128We have stated the undisputed facts as shown by the bill of exceptions. For if the plaintiff acquired an indefeasible title by adverse possession to the lands during the years intervening between 1865 and 1876, no abandonment by him of the possession or any other act, short of a conveyance by him, could divest him of it. Nor could the title be divested by any subsequent legislative enactment; and the law existing prior thereto and at the time of the ripening of the adverse possession into a perfect title is the law of this case.—Doe ex dem. Ala. State Land Co. v. Beck, 108 Ala. 71.
The first question then presented is, this being school land and the defendant claiming under a patent from the State of Alabama dated in 1890, and a deed from the plaintiff’s brother with whom he made the exchange, whether ten years’ adverse possession or twenty years’ adverse possession was required to ripen this possession into a perfect title?
Under the Codes of 1852 and 1867 we find the limitation of actions for the recovery of real estate to he as follows:
1. Actions at the suit of the State of Alabama against a citizen thereof for the recovery of real estate must be commenced within twenty years after the accrual of the cause of action.
2. Actions for the recovery of lands, tenements or hereditaments or the possession thereof must be commenced within ten years after the cause of action has accrued.
Prior to the Code of 1852 there was no statute as to time limiting the right of the State to enforce a cause of action brought for the recovery of lands belonging to it. This was the condition that existed as to the statute of limitation when the rights of Miller, the defendant in the case of Miller v. The State, 38 Ala. 600, accrued. And when sued in an action of ejectment by the State for the use of the township trustees for sixteenth section lands, he invoked the defense of adverse possession for ten years, which was denied to him by the circuit court. On appeal, Justice Walicer, speaking for the court, said: “Though the State is a party to this suit, it has [129]*129no real interest in tlie litigation. If there had been a right of recovery the property sued for belongs, not to the State, but to the township; so that in fact the suit is substantially between the township and the defendant. The Code expressly provides that, in all cases where suits are brought in the name of the person having the legal right, for the use of another, the beneficiary must be considered as the sole party on the record. In our opinion, the rule that the statute of limitation does not run against the State, has no application to a case like the present, when the State, though a nominal party on the record, has no real interest in the litigation, but its name is used as a means of enforcing the rights of a third person who alone will enjoy the benefits of recovery.” He then proceeded at length to show that the defendant was an adverse holder, and should he protected by the statute of liniitations of ten years.
The statute of limitations in respect to lands continued as codified in the Codes of 1852 and 1867, and the construction in the case of Miller v. The State, above quoted, until the 30th day of November, 1876, when the legislature for the evident purpose of relieving trustees of all sixteenth section lands from the operation of the ten year statute as applied in that case, amended the statute exempting them from its operation. — Acts, 1876-77, p. 102. After the passage of this act the case of the State v. Conner, 69 Ala. 212, ivas before this court. This was an action of ejectment brought by the State for. the use of a township to recover of Conner school lands, and was tried in the circuit court on issue joined upon the plea of not guilty which resulted in a verdict and judgment for defendant. The evidence introduced in behalf of defendant tended to establish an adverse póssession by him for ten years prior to November 30, 1876, and before the commencement of the suit. And for the purpose of further establishing his adverse possession he was allowed to introduce certain conveyances as color of title under Avhich he acquired possession and claimed title to the lands, against the objections of the plaintiff to which an exception was reserved. In addition to this exception, the plaintiff requested a charge in writing to tiie effect that the statute of limitations of ten years [130]*130was no defense to the action, which was refused by the court, to which an exception was also reserved by the plaintiff. Again this court, following- the decision in the Miller Case, through Judge Stone, held the statute of limitations of ten years was a good defense, and affirmed the rulings of the circuit court. The principles announced in these cases were recognized in the case of Burks v. Mitchell, 78 Ala. 61, and the latter case above referred to was cited with approval.
It is insisted by appellant that the cases of Gaston v. The State, 88 Ala. 459, Wyatt v. Tisdale, 97 Ala. 594, and Prestwood v. Watson, 111 Ala. 604, are in conflict with the doctrine laid down in the Miller and Conner Oases, and being- later adjudications of this court should be followed.
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TYSON, J.
It appears without dispute that in the spring of 1865, the plaintiff, who was a farmer by occupation, acquired the possession of one hundred acres of the land in controversy from his brother by an exchange for other lands. This exchange was not evidenced by any writing, but the plaintiff went into the actual possession of the land and made some improvement by clearing and cultivation and continued to clear, fence and'cfiltivate the tillable portion, increasing the acreage of tillable land to sixteen acre's. The remaining portion of the land ivas uncleared, grown up in trees and other growth,-wild, mountainous and unfit for cultivation, from which he got, as he needed it during each of these years, his fire wood, rails, timber for his own use, and cut therefrom frequently timber which he disposed of to others. There were three houses .upon the tract which were occupied by tenants of plaintiff from 1865 to 1868, when they were destroyed. The continued use of the land under his contract of exchange, in the manner indicated above, in conne'ction with the. lands adjoining owned by him upon which he lived, was exercised by him uninterruptedly until the year 1876, when the testimony offered by the defendant tended to show, which however was disputed, that he ceased to cultivate the fields, and the fences around the cultivable lands were allowed to fall down in places, and shrubbery was permitted to grow up on them, until the year 1889, when he rebuilt the fences and a new house and enclosed a yard around it, to be used by his son as his tenant. It was also proved without dispute that plaintiff’s brother claimed title to the land sued for under a purchase by him from the township trustees, some time prior to its exchange to the plaintiff, and that he Avas in possession of it at the time' the exchange was made claiming under his purchase. It Avas also Avithout dispute that plaintiff’s brother never claimed these lands after the exchange, and that it' Avas generally known in the neighborhood that plaintiff claimed to own the lands, and that his possession Avas neArer interrupted by any one until the defendant brought its action in ejectment against him in 1894, and obtained a judgment for all the land except that in cultivation and enclosed.
[128]*128We have stated the undisputed facts as shown by the bill of exceptions. For if the plaintiff acquired an indefeasible title by adverse possession to the lands during the years intervening between 1865 and 1876, no abandonment by him of the possession or any other act, short of a conveyance by him, could divest him of it. Nor could the title be divested by any subsequent legislative enactment; and the law existing prior thereto and at the time of the ripening of the adverse possession into a perfect title is the law of this case.—Doe ex dem. Ala. State Land Co. v. Beck, 108 Ala. 71.
The first question then presented is, this being school land and the defendant claiming under a patent from the State of Alabama dated in 1890, and a deed from the plaintiff’s brother with whom he made the exchange, whether ten years’ adverse possession or twenty years’ adverse possession was required to ripen this possession into a perfect title?
Under the Codes of 1852 and 1867 we find the limitation of actions for the recovery of real estate to he as follows:
1. Actions at the suit of the State of Alabama against a citizen thereof for the recovery of real estate must be commenced within twenty years after the accrual of the cause of action.
2. Actions for the recovery of lands, tenements or hereditaments or the possession thereof must be commenced within ten years after the cause of action has accrued.
Prior to the Code of 1852 there was no statute as to time limiting the right of the State to enforce a cause of action brought for the recovery of lands belonging to it. This was the condition that existed as to the statute of limitation when the rights of Miller, the defendant in the case of Miller v. The State, 38 Ala. 600, accrued. And when sued in an action of ejectment by the State for the use of the township trustees for sixteenth section lands, he invoked the defense of adverse possession for ten years, which was denied to him by the circuit court. On appeal, Justice Walicer, speaking for the court, said: “Though the State is a party to this suit, it has [129]*129no real interest in tlie litigation. If there had been a right of recovery the property sued for belongs, not to the State, but to the township; so that in fact the suit is substantially between the township and the defendant. The Code expressly provides that, in all cases where suits are brought in the name of the person having the legal right, for the use of another, the beneficiary must be considered as the sole party on the record. In our opinion, the rule that the statute of limitation does not run against the State, has no application to a case like the present, when the State, though a nominal party on the record, has no real interest in the litigation, but its name is used as a means of enforcing the rights of a third person who alone will enjoy the benefits of recovery.” He then proceeded at length to show that the defendant was an adverse holder, and should he protected by the statute of liniitations of ten years.
The statute of limitations in respect to lands continued as codified in the Codes of 1852 and 1867, and the construction in the case of Miller v. The State, above quoted, until the 30th day of November, 1876, when the legislature for the evident purpose of relieving trustees of all sixteenth section lands from the operation of the ten year statute as applied in that case, amended the statute exempting them from its operation. — Acts, 1876-77, p. 102. After the passage of this act the case of the State v. Conner, 69 Ala. 212, ivas before this court. This was an action of ejectment brought by the State for. the use of a township to recover of Conner school lands, and was tried in the circuit court on issue joined upon the plea of not guilty which resulted in a verdict and judgment for defendant. The evidence introduced in behalf of defendant tended to establish an adverse póssession by him for ten years prior to November 30, 1876, and before the commencement of the suit. And for the purpose of further establishing his adverse possession he was allowed to introduce certain conveyances as color of title under Avhich he acquired possession and claimed title to the lands, against the objections of the plaintiff to which an exception was reserved. In addition to this exception, the plaintiff requested a charge in writing to tiie effect that the statute of limitations of ten years [130]*130was no defense to the action, which was refused by the court, to which an exception was also reserved by the plaintiff. Again this court, following- the decision in the Miller Case, through Judge Stone, held the statute of limitations of ten years was a good defense, and affirmed the rulings of the circuit court. The principles announced in these cases were recognized in the case of Burks v. Mitchell, 78 Ala. 61, and the latter case above referred to was cited with approval.
It is insisted by appellant that the cases of Gaston v. The State, 88 Ala. 459, Wyatt v. Tisdale, 97 Ala. 594, and Prestwood v. Watson, 111 Ala. 604, are in conflict with the doctrine laid down in the Miller and Conner Oases, and being- later adjudications of this court should be followed. Before entering- upon a discussion of these cases, Avhich we Avill do in the order named above, it will be well to note another change in the statute' of limitations. The act of November, 1876, was carried into the Code of 1876 (§ 3225), and remained in force until the adoption of the Code of 1886. Section 2613 (Code, 1886) provides: “Actions by or for the use of any township for the recovery of sixteenth section or other school lands belonging to the township” must be commenced after the cause of action has accrued within twenty years and not afterwards. This Avas the first time the legislature made, by express declaration, the twenty years statute applicable to causes of action arising- out of adverse holding of school lands. This provision will be found in the Code of 1896 (§ 2794). It Avas while this section of the Code ’of 1886 was in force that these decisions were made. In the case of Gaston v. The State, the suit was commenced in 1888, and the plea of adverse possession of fifteen years was held bad, for the obvious reason that the bar Avas not complete Avhen the act of 1876 Avas passed. Under the averment of the plea the defendant had been in possession only three years when the ten year statute was repealed by that act.
In the case of Wyatt v. Tisdale, the evidence introduced by the defendant establishing his adverse possession and those through Avhoin he claimed for more than twenty years was uncontroverted; and Justice Coleman [131]*131correctly lield that tlie affirmative charge should have been given for him. This would have been true under the facts in the case had adverse possession been for the ten years prior to 1876, and tlie only expression in his opinion which can be construed as conflicting with this view is to be found in the following language: “Our statute prescribing the time within which suits must be brought which has been in force at least since the adoption of the Code of 1852, is as follows: 'Section 2613. Limitations of twenty years: Within twenty years.
1. Actions at the suit of tlie State against a citizen thereof for the recovery of real or personal property.
2. Actions by or for the use of any township for tlie recovery of any sixteenth section or other school lands belonging to the township.’ ”
Tlie statement that subdivision 2 of section 2613 lias been in force since the adoption of tliq Code of 1852 was an error. As we have shown, it had no existence until the adoption of tlie Code of 1886. In this respect the opinion must be modified. As persuasive that Judge Coleman recognized the rule as stated in the Miller Case, he cites it in two places and makes it the foundation of his opinion.
The case of Prestwood v. Watson, 111 Ala. 604, supra, was correctly decided upon the facts. The agreement of facts upon which it was tried will be found in 79 Ala. 417. It appeared that Cooper’s possession, through whom tlie defendant claimed, commenced in 1875, only one year prior to the act of 1876. There being, then, no statute of limitations in force as against township trustees of school lands from November 30, 1876, until the adoption of the Code of 1886, and the suit being commenced in 1885 he could not have acquired the title within that period. Nothing short of twenty years adverse possession would-have given him a title by prescription. So the court in that case properly said: “There was no hostile possession for that period, prior to the commencement of this suit, claimed in the court below, and if it had been claimed, it would, not have found support in tlie evidence.”
We are clearly of the opinion that the rights of the defendant or those under whom it claimed, had. to be as[132]*132serted within ten years after their accrual under the facts of this case as against the adverse possession of the plaintiff. There is one hundred and sixty acres of land m the northwest quarter of section sixteen claimed by plaintiff in this suit which he claims he got from his brother less 15 acres in the “Flats of Five Mile Creek.” It appears, however, that as to forty-five acres, the plaintiff made declarations tending to show that he did not claim it under his exchange with his brother and that in the former suit between these parties he disclaimed any right, title and interest in this forty-five acres, and only claimed to own the one hundred acres. This forty-five acres, as Avas the greater portion of the one hundred acres, Avas woodland, mountainous and unsuitable for cultivation, afid only valuable and useful for the timber upon it. The testimony of defendant also tends to show that the plaintiff exercised no acts of ownership over this forty-five acres, by getting wood, rails, timber, etc. from it, as was done by him over the other portion of the tract claimed by him in the first suit.
When the plaintiff acquired possession ' from his brother and the brother accepted the plaintiff’s lands and Avent into the possession of them in the spring of 1865, the contract between them became executed, and the plaintiff’s possession became adverse to him, notwithstanding the exchange was made by parol agreement. There can be no difference on principle between this case and where a verbal sale of lands is made and the purchaser put into possession upon the payment by him of the purchase money. In the latter case the purchaser’s possession after paying the purchase price is presumed to be in his OAvn right and is adverse to his vendor. If this possession continues for the statutory period of ten years Avithout recognition of or subordination to the legal title of the vendor, the right of entry or action to recover the possession is barred.—Potts v. Coleman, 67 Ala. 221; Tayloe v. Dugger, 66 Ala. 451; Beard v. Ryan, 78 Ala. 37; Newsome v. Snow, 91 Ala. 641.
In Normant v. Eureka Company, 98 Ala. 181, this principle is distinctly and clearly announced, and Jus[133]*133tice Coleman in tlie opinion, in speaking of the extent of'the adverse possession by the purchaser, said: “We are clearly of the opinion that the purchaser who pays the purchase money for land and takes possession of it under a legal contract of sale, whether verbal or written, has possession co-extensive with the lands included in his contract of purchase, and he may show the extent of his possession by the proof of the contract of sale and purchase, that in such case the contract Avill fix the boundary of his. possession.” Continuing he says: “This principle applies as between vendor and .vendee or in ease of execution sale, to the defendant in execution and the purchaser at such sale. It is not intended to modify or affect, in any way, the doctrine declared in the above authorities as to possession of mere trespassers or those AA'ho claim under color of title, but simply to declare that a valid contract of sale, fixes the extent of the possession of one entering upon and holding the possession under such a contract, just as the possession of one who is under color of title is limited by the description in the writing AA’liich confers color of title.”
A majority of the court are of the opinion that the doctrine announced extending the adverse possession under a Aralid parol contract of sale to the boundary of the lands as fixed by the contract is limited in its application as between A’endor and A’endee, or in case of execution sale, to the defendant in execution and the purchaser at such sale. That Avlien no such' relation exists between the parties litigant or their privies that the possession of the adverse holder is limited to his possessio pedis, unless he holds under written color of title. In other words, to extend adverse possession beyond the actual possession the adverse holder must enter upon and hold the lauds under a paper writing fixing its boundaries — that color of title cannot exist or be evidenced in any other way except where the relation exists between the parties litigant above pointed out. Furthermore they hold, this is the settled rule of laAV in this State, whatever may be the doctrine in other States and they must decline to depart from it. They rely upon Hawkins v. Hudson, 45 Ala. 482; Bell v. Denson, 56 Ala. 444; Burks v. Mitchell, 78 Ala. 61; Clements v. Hays, 76 Ala. 280, as supporting their views.
[134]*134A careful examination of eacli of these cases in which it is held that it requires a written instrument to extend adverse possession to the boundaries of the tract claimed by the adverse holder, will show that the question was not involved in the decision of the cause. In no one of them except in the case of Bell v. Denson did the evidence disclose that the adverse holder was in «possession claiming the lands under a valid parol contract in which the boundaries were fixed by such contract. And in Bell v. Denson the court expressly declares that the doctrine was not involved, and rests an affirmance of the case upon distinctly different grounds. Besides the force of the opinion as an authority for the rule under discussion is greatly impaired when considered in the light of its adjudication of the correctness of charge 5 given at the instance of the defendant to which the appellant excepted, which ivas in the following words: “That if the said Denson bought the land in dispute from Petit, under a parol contract, and at the time of the purchase paid any of the purchase money and went into possession of the land, then said Denson has an adverse possession of said lands, and is entitled to protect himself in this suit under an adverse claim, upon actual or constructive notice of such claim.” In passing upon this charge among others given at the request of the appellee the court said: “It may he that one or more of the charges given at the request of the appellees had a tendency to mislead the jury. That, however, is not a reversible error; the appellants should have requested explanatory instructions. It cannot be affirmed that either of these charges is erroneous in the statement of legal principles.”
Bearing-in mind that the evidence disclosed no acts of possession by Denson upon the land, which consisted of a tract of three hundred and twenty acres of woodland, except the building of a house in which he resided, the enclosing, clearing and cultivating five or six acres and working on a portion for gold for a period of more than ten years, the charge was clearly erroneous unless the doctrine which I contend for is the law. Clearly if the rule obtains as announced by the other members of the court, the case should have been reversed,
[135]*135To my mind it is clear Justice Coleman did not intend to say that the doctrine so clearly announced by him in Normant’s Case, supra, was to be limited in its application as held by the majority of the court. On the contrary, he said expressly “that a valid contract of sale, fixes the extent of the possession of one entering upon and holding the possession under such contract, just as the possession of one who is under color of title is limited by the description in the writings which confer color of title.”
I must confess my inability to comprehend the meaning of what seems to be plain and unambiguous language, if I am in error as to what he intended to say and did say. That he Avas correct in so holding I entertain no sort of doubt. The basis of the doctrine of adverse possession rests upon a possession under bona fide claim or color of title, open, notorious, continuous and hostile to the title of the true OAvner. — Mr. Freeman’s note in case of DeFrieze v. Quint, 28 Am. St. Rep. 158.
Adverse possession rests in the intention of the possessor, and it is said “the intention guides the entry and fixes its character.”—Potts v. Coleman, 67 Ala. 221; Herbert v. Hanrick, 16 Ala. 595; Alexander v. Wheeler, 69 Ala. 332. One of its essential elements as universally recognized by the courts and text writers is that the possessor must claim to own the lands independent of the title or claim of all other persons. If his possession is in recognition of another’s title as superior to his, and it is not material who that other person may be,, no length of time will ripen his holdings into á title by adverse possession, notwithstanding all the other essential elements of adverse possession may exist. The converse of this proposition is equally as sound. If he claims bona fide to own the lands and the other essential elements are shown, his possession, if for ten years, ripens into an indefeasible title, not only as against his vendor but against the world. — 3 Brick. Dig. 17, § § 3, et seq; 1 Brick. Dig. 19, § § 9, et seq.
If the possessor acquires possession by a trespass, his possession is necesarily confined to his possessio pedis, for the obvious reason there is no means afforded by which his intention can be ascertained as to the extent [136]*136iu area of Ms claim except tlie lauds actually occupied by him. But if his entry is under a written instrument defining the boundaries, his possession extends to the boundaries named in the writing, for the reason that the writing furnishes the evidence of his intention to claim to this extent, and this too notwithstanding the writing is unrecorded, and the owner of the lands had no notice of its existence, and notwithstanding the writing is void as a conveyance of title.—Stovall v. Fowler, 72 Ala. 77; Ryan v. Kilpatrick, 66 Ala. 332; Baucum v. George, 65 Ala. 259; Brady v. Huff, 75 Ala. 80; Childress v. Calloway, 76 Ala. 128; Watson v. Mancill, 76 Ala. 600; Farmer v. Eslava, 11 Ala. 1028; Hall v. Root, 19 Ala. 378; Hughes v. Anderson, 79 Ala. 209.
It is evident that the notice to the owner of the claim of the adverse holder is not dependent' upon a knowledge of the existence of the written instrument or of its contents under which such adverse holder claims title to the lands. It is the knowledge, either actual or imputable, of the possession of his lands by another claiming to own them bona fide and openly, that affects his right of entry.—Brown v. Cockrell, 33 Ala. 38; Hughes v. Anderson, supra. This being true, the only office or function which a written, unrecorded, void and otherwise unknown instrument, so far as the owner is concerned, can possibly fulfill is to afford evidence of the claim of the adverse holder and the extent of that claim. For if it were otherwise a trespasser could never acquire title by adverse possession. Just why a verbal contract fixing the boundaries of the purchaser’s possession is not of equal dignity and entitled to the same weight, when clearly proven, as a void, unknown, unrecorded writing, to serve as a guide in determining his entry and fix its character, I am unable to see. The position taken by my brothers seems to me to be flagrantly illogical and certainly not conducive to justice and equity. For it may be and doubtless is oftentimes the case that the adverse holder knows his deed is void, paying a consideration for the lands in proportion to his chances of success to remain in possession for ten years, and yet he is protected to the full extent of the boundaries described in [137]*137bis void deed, while tlie innocent purchaser who may have paid full value, under a verbal contract, is restricted to his -possessio pedis. The great weight of authority in this country sustains me in my views as will he seen from an examination of the following authorities: 1 Am. & Eng. Encyc. Law (2d ed,), 848; Tyler on Ejectment, 863; 2 Smith Lead. Cas. (8th Am. ed.) 711; Green v. Kellum, 2 Penn. St. 258; McCall v. Neely, 3 Watts, 72; Tate v. Southard, 14 Am. Dec. note, 581; La Frombois v. Jackson, 8 Cowen, 589; Van Cleave v. Millikan, 13 Ind. 108; Baker v. Hall, 6 Baxter 48; Teabout v. Daniels, 38 Iowa 161; Rannels v. Rannels, 52 Mo. 108; MaGee v. MaGee, 37 Miss. 138.
The plaintiff in this case Avas not a trespasser. He had paid the purchase price of- the land, and it Avas of no consequence whether his brother had paid the purchase money to the township trustees for it. If he had not, this could not have affected the plaintiff’s rights, if he claimed to oavii it, as he did, as against them.—Beard v. Ryan , 78 Ala. 37; Tayloe v. Dugger, 66 Ala. 444.
A majority of the court hold in consonance with their vieAvs that charges 1 and 2 requested by the defendant should haAre been given. Under the views which I entertain, they Avere properly refused, for the reason that as to the one hundred acres of the land acquired by the plaintiff under his contract of exchange, he Avas entitled to have the court, charge affirmatively that he Avas entitled to recover it. As to AAdietlier he was entitled to recover the forty-five acres was a matter of dispute to be determined by the jury, there being a dispute as to whether it was included in the contract with his brother. And this I conceive to be true, notwithstanding he may not have knoAA'n the location of the boundary lines, but if he claimed to them and they were capable of being ascertained under his contract of exchange.
There is no difference of opinion betAveen us as to any other point in the case.
What Ave have said disposes of all the charges refused to the appellant except charge No. 7. This charge bases the defendant’s right to a verdict to a certain portion of the land in controversy upon the theory that his disclaimer to that portion in the former suit estopped him [138]*138to claim it in this suit. Whether this Avould have been true if there had been a judgment rendered against him upon his disclaimer, Ave do not decide. The record discloses that it was merely an unsworn plea filed by him or his attorney in the former suit and fails to disclose any action, if any, Avas taken upon it. It is too Avell settled to need a citation of authorities that' unsAVorn pleadings are mere suggestions of counsel and therefore not binding upon the party litigant in Avhose behalf they are filed, and Avas not properly admissible in evidence. This was an error of which the appellant cannot complain, nor of the ruling of the court in limiting its effect.
The only other matter not disposed of was the ruling of the court in permitting the plaintiff to prove that it Avas generally known in the neighborhood that the land belonged to him against the objection of the defendant. We understand the rule to be that the existence of a fact cannot be proved by reputation or notoriety, yet Avhere the fact is other Avise established, general notoriety in the neighborhood may be proved as competent evidence to charge a resident in such Adcinity with knoAvledge of it. There Avas no error in admitting this testimony under the facts of this case.—Woods v. Montevallo C. & T. Co., 84 Ala. 564; Humes v. O’Bryan, 74 Ala. 81; Price v. Mazange & Co., 31 Ala. 701.
For the error, ms held by the other members of the court, committed in refusing charges 1 and 2, the judgment must be reversed and the cause remanded.
Reversed and remanded.