ANDERSON, J.
— The undisputed evidence shows that this defendant was in the actual possession of the land sued for, claiming it as his own, for about 40 years. This being true, such possession on his part, without recognition of any claim, light, or titie of another, would operate as an absolute repose under the doctrine of prescription. — Roach v. Cox, 160 Ala. 425, 49 South. 578, 135 Am. St. Rep. 107, and cases there cited. The rule, however, is that neither the statute of limitations nor the prescription of 20 years begins to run against a remainderman until he has a right to sue, that -is, until the termination of the life estate. — Bass v. Bass, 88 Ala. 408, 7 South. 243; Bolen v. Hoven, 143 Ala. 652, 39 South. 379; Winters v. Powell, 180 Ala. 425, 61 South. 96.
While counsel for the defendant stated in open court that he did not claim under any one, but based his title solely upon adverse possession, the plaintiff introduced deeds to the land to said defendant from J. M. Rabby, the husband of Adele Rabby, and which said deeds were made after the death of the said A. Rabby. So the question arises, and which is the chief issue in this case: Did the said Adele Rabby, at the time of her death, own the land, or have such a title to or interest in same as would [161]*161support or authorize a life estate in her surviving husband? The plaintiff showed that Adele Rabby was in possession of the land, as her home, under color of title, at the time of her death. If this was true, then she was the owner of the land, and could have recovered or defeated the recovery of same as against all who did not shoAV a superior claim or title thereto. — McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 South. 822, and authorities there cited. And upon her death her husband took a life estate in same under section 2379 of the Code of 1867; the remainder going to her heirs, and under whom the plaintiffs claim title. The defendant contended, however,- in the trial court, that Adele Rabby did not own the land at the time of her death, and that his grantor, J. M. Rabby, took no life estate in the land upon the death of his said wife. In other Avords, Avhile the said Adele Rabby was in possession of the land under color of title, that said possession was not of such duration as to give her the legal title by adverse possession, and that she lost her ownership or rights previously acquired by an abandonment of same before her said possession was of sufficient duration to give her a title. If it be true that the said Adele Rabby abandoned the possession of the land before her death, that-is, gave up her possession previous to her death, and there was no animus revertendi, then she Avas not the owner of the land at the time of her death, and her husband took no life estate in same, and the plaintiffs could not recover against this defendant, notwithstanding he may hold under deeds from the husband. If the'husband had no life estate to convey by the said deeds,. then there was nothing to intercept or bar the defendant’s right to set up limitations and prescription. While the plaintiffs’ evidence sho-Aved that Adele Rabby died in the actual possession of the land, and that her husband was [162]*162residing upon same after her death, and when he made the deeds to the defendant, there was evidence on the part of the defendant showing that she had abandoned the land prior to her death, and for some time before the defendant went into possession of same. If she abandond the land, that is, gave up her possession, and there was no animus revertendi, she was not in possession at the time of her death, and the plaintiffs were not entitled to recover, and, • as there was proof tending to establish this fact, although contradicted by the plaintiffs’ evidence, the conflict made it a jury case, and the trial court did not err in refusing the general charge requested by the plaintiffs.
So much of the oral charge as was excepted to by the appellants conforms to the foregoing views. Moreover, it does not appear that the exception was reserved before the jury retired. — Carter v. Tenn. Coal Co., 180 Ala. 367, 61 South. 65, and cases there cited.
Charge 3, given at the request of the defendant, should have been refused. It invaded the province of the jury, ignored a feature of the plaintiffs’ evidence, and was contradictory. It was for the jury to determine whether or not, even under the facts hypothesized in the charge, the acceptance of the deeds from J. M. Rabby by the defendant was evidence of or created an inference that Adele Rabby owned the land. There is no evidence in the case tending to show that J. M. Rabby owned or claimed the land, except through the death of his wife, and the making by him of a deed to same; and the acceptance thereof by the defendant of said deed would at least afford an inference for the jury that he was conveying the title acquired by the death of his wife, and a recognition both by him and the defendant that the said Adele Rabby owned the said land. Moreover, we do not see how the defendant was an adverse holder, if he pro[163]*163cured or accepted the deed from J. M. Rabby, as this might be some recognition of a claim by said J. M. Rabby to the land, and as the surviving husband of Adele Rabby, at least in the absence of some proof showing that it was understood that the defendant did not, in accepting the deeds, recognize any right or claim in the grantor.
Charge 9, given at the defendant’s request, asserts the law and the truth; but it was calculated to mislead in the present case. Technically, Adele Rabby had to have what is termed the “legal title” to the land; but, if she held possession under color of title, this was sufficient to enable her to recover same against one not showing a superior title, and would be such- an estate as would enable the husband to take a life interest in the land. The charge also- pertermits the fact that the Sadler and Riley deeds would not alone prove that Adele Rabby had the legal title. They, if taken alone, would not do- so-; but when taken in connection with the plaintiffs’ evidence as to the possession of Adele Rabby, which is ignored in the charge, this would prove, as against this defendant, that Adele Rabby did have such a legal title to the land as would enable her or her representatives to recover the same in ejectment, or -which would afford such an ownership by her as would enable her husband to take a life estate in said land. Whether or not the defects as pointed out could have been cured by explanatory charges by the plaintiff so as to save a reversal, we need not determine, as the case must be reversed for other reasons. It is sufficient to say that the trial court can safely refuse the charge upon the next trial.
The trial court should have refused charge 10, given at the request of defendant. Adele Rabby could recover in ejectment against the defendant upon her color of title and prior possession of the land, whether in the [164]*164actual possession of same at the time the defendant entered or not, if he entered as a trespasser, and not under color of title. Adele Rabby may not have been in the actual possession the moment the defendant entered upon the land, yet may not have abandoned it with an intention not to return, and, if such was the case, she could recover it against a person whose possession was subsequent to hers, and who did not enter under color of title as a purchaser in good faith. — McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 South. 822; 10 Am. & Eng. Ency. of Law, 488.
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ANDERSON, J.
— The undisputed evidence shows that this defendant was in the actual possession of the land sued for, claiming it as his own, for about 40 years. This being true, such possession on his part, without recognition of any claim, light, or titie of another, would operate as an absolute repose under the doctrine of prescription. — Roach v. Cox, 160 Ala. 425, 49 South. 578, 135 Am. St. Rep. 107, and cases there cited. The rule, however, is that neither the statute of limitations nor the prescription of 20 years begins to run against a remainderman until he has a right to sue, that -is, until the termination of the life estate. — Bass v. Bass, 88 Ala. 408, 7 South. 243; Bolen v. Hoven, 143 Ala. 652, 39 South. 379; Winters v. Powell, 180 Ala. 425, 61 South. 96.
While counsel for the defendant stated in open court that he did not claim under any one, but based his title solely upon adverse possession, the plaintiff introduced deeds to the land to said defendant from J. M. Rabby, the husband of Adele Rabby, and which said deeds were made after the death of the said A. Rabby. So the question arises, and which is the chief issue in this case: Did the said Adele Rabby, at the time of her death, own the land, or have such a title to or interest in same as would [161]*161support or authorize a life estate in her surviving husband? The plaintiff showed that Adele Rabby was in possession of the land, as her home, under color of title, at the time of her death. If this was true, then she was the owner of the land, and could have recovered or defeated the recovery of same as against all who did not shoAV a superior claim or title thereto. — McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 South. 822, and authorities there cited. And upon her death her husband took a life estate in same under section 2379 of the Code of 1867; the remainder going to her heirs, and under whom the plaintiffs claim title. The defendant contended, however,- in the trial court, that Adele Rabby did not own the land at the time of her death, and that his grantor, J. M. Rabby, took no life estate in the land upon the death of his said wife. In other Avords, Avhile the said Adele Rabby was in possession of the land under color of title, that said possession was not of such duration as to give her the legal title by adverse possession, and that she lost her ownership or rights previously acquired by an abandonment of same before her said possession was of sufficient duration to give her a title. If it be true that the said Adele Rabby abandoned the possession of the land before her death, that-is, gave up her possession previous to her death, and there was no animus revertendi, then she Avas not the owner of the land at the time of her death, and her husband took no life estate in same, and the plaintiffs could not recover against this defendant, notwithstanding he may hold under deeds from the husband. If the'husband had no life estate to convey by the said deeds,. then there was nothing to intercept or bar the defendant’s right to set up limitations and prescription. While the plaintiffs’ evidence sho-Aved that Adele Rabby died in the actual possession of the land, and that her husband was [162]*162residing upon same after her death, and when he made the deeds to the defendant, there was evidence on the part of the defendant showing that she had abandoned the land prior to her death, and for some time before the defendant went into possession of same. If she abandond the land, that is, gave up her possession, and there was no animus revertendi, she was not in possession at the time of her death, and the plaintiffs were not entitled to recover, and, • as there was proof tending to establish this fact, although contradicted by the plaintiffs’ evidence, the conflict made it a jury case, and the trial court did not err in refusing the general charge requested by the plaintiffs.
So much of the oral charge as was excepted to by the appellants conforms to the foregoing views. Moreover, it does not appear that the exception was reserved before the jury retired. — Carter v. Tenn. Coal Co., 180 Ala. 367, 61 South. 65, and cases there cited.
Charge 3, given at the request of the defendant, should have been refused. It invaded the province of the jury, ignored a feature of the plaintiffs’ evidence, and was contradictory. It was for the jury to determine whether or not, even under the facts hypothesized in the charge, the acceptance of the deeds from J. M. Rabby by the defendant was evidence of or created an inference that Adele Rabby owned the land. There is no evidence in the case tending to show that J. M. Rabby owned or claimed the land, except through the death of his wife, and the making by him of a deed to same; and the acceptance thereof by the defendant of said deed would at least afford an inference for the jury that he was conveying the title acquired by the death of his wife, and a recognition both by him and the defendant that the said Adele Rabby owned the said land. Moreover, we do not see how the defendant was an adverse holder, if he pro[163]*163cured or accepted the deed from J. M. Rabby, as this might be some recognition of a claim by said J. M. Rabby to the land, and as the surviving husband of Adele Rabby, at least in the absence of some proof showing that it was understood that the defendant did not, in accepting the deeds, recognize any right or claim in the grantor.
Charge 9, given at the defendant’s request, asserts the law and the truth; but it was calculated to mislead in the present case. Technically, Adele Rabby had to have what is termed the “legal title” to the land; but, if she held possession under color of title, this was sufficient to enable her to recover same against one not showing a superior title, and would be such- an estate as would enable the husband to take a life interest in the land. The charge also- pertermits the fact that the Sadler and Riley deeds would not alone prove that Adele Rabby had the legal title. They, if taken alone, would not do- so-; but when taken in connection with the plaintiffs’ evidence as to the possession of Adele Rabby, which is ignored in the charge, this would prove, as against this defendant, that Adele Rabby did have such a legal title to the land as would enable her or her representatives to recover the same in ejectment, or -which would afford such an ownership by her as would enable her husband to take a life estate in said land. Whether or not the defects as pointed out could have been cured by explanatory charges by the plaintiff so as to save a reversal, we need not determine, as the case must be reversed for other reasons. It is sufficient to say that the trial court can safely refuse the charge upon the next trial.
The trial court should have refused charge 10, given at the request of defendant. Adele Rabby could recover in ejectment against the defendant upon her color of title and prior possession of the land, whether in the [164]*164actual possession of same at the time the defendant entered or not, if he entered as a trespasser, and not under color of title. Adele Rabby may not have been in the actual possession the moment the defendant entered upon the land, yet may not have abandoned it with an intention not to return, and, if such was the case, she could recover it against a person whose possession was subsequent to hers, and who did not enter under color of title as a purchaser in good faith. — McCreary v. Jackson Lumber Co., 148 Ala. 247, 41 South. 822; 10 Am. & Eng. Ency. of Law, 488.
For like reasons defendant’s chai’ge 19 should have been refused. The law does not presume title in the subsequent possessor of the land without color of title, as against a prior possessor under color of title, unless the prior possession was abandoned without an animus revertendi. — L. & N. R. R. Co. v. Philyaw, 88 Ala. 269, 6 South. 837.
Charge 20, given for the defendant, was correct, and contains the identical omission which rendered charge 19 bad.
Charge 16, given at the request of the defendant, can well be refused upon the next trial. The law may presume a conveyance by an adverse possession of 20 years; but the assertion that it would presume a deed from the Yidmers as heirs of Mrs. Rabby is inconsistent with their claim of title. If they had any title, it was as remaindermen, and, if they were remaindermen, the law would not presume a conveyance from them to the defendant. True, the charge hypothesizes adverse possession; but, if the Vidmers had title as remaindermen, there was no adverse possession, and, if they had none, the law would not presume a deed from them to the defendant.
[165]*165Charge 2, requested by the plaintiffs, asserts the law, and can well be given upon the next trial. It does not assume or instruct that there was a life estate in J. M. Rabby, or tell the jury what to do, but asserts a clear legal proposition.
The trial court should have given plaintiffs’ refused charge 3. It may be true that defendant announced that he did not claim through Adele Rabby; yet there was evidence from which the jury could infer that he did, and which fact is hypothesized in the charge, and, if such was the case, he is estopped from-denying her title.
■ — Pendley v. Madison, 83 Ala. 484, 3 South. 618. If, therefore, the jury should find that the defendant claimed title from Adele Rabby by purchasing from her husband, he was estopped from denying her title, and having purchased from the husband, and not from her, he only acquired the life estate of J. M. Rabby, and the plaintiffs would be entitled to recover.
Plaintiffs’ refused charge 4 should have been given for reasons heretofore set out in this opinion.
Plaintiffs’ refused charge “A” should have been given. If the defendant entered under the deeds from J. M. Rabby, then the only evidence fixing any rights in the said Rabby was through his wife, and the defendant would therefore claim under Adele Rabby, and would be estopped from denying the title of the said Adele Rabby. Of course, it was a question for the jury as to whether or not the defendant entered and claimed under the deeds from the husband, J, M. Rabby; but this charge hypothesizes the fact that he entered and claimed the. land under said deeds.
It may be that the giving of plaintiffs’ charge 5 rendered the refusal of some of the other charges innocuous to the plaintiffs; but this we need not decide, as the giving of same did not cure or neutralize all the errors [166]*166above pointed out so as to prevent a reversal of this case. Moreover, said given charge 5 is in conflict with some of the defendant’s given charges.
The judgment of the law and equity court is reversed, and the cause is remanded.
Reversed and remanded.
Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.