[Bingham, Adm'r, v. Jones et al.] unknown, is a full statement of all the knowledge petitioner has of such persons, or has been able to ascertain." This is all the petition contains in reference to the children of Mary Little. There was a demurrer to the petition, assigning as a ground that it failed to set forth the names, &c., of these heirs. The Probate Court sustained the demurrer. There is a statutory provision for making parties defendant to a bill in chancery, and for bringing them in for publication, when their names are unknown to the plaintiff, and can not be ascertained on diligent inquiry. Code of 1886, § 3433. But this right is purely statutory, and to bring a case within its influence, its substantial requirements must be conformed to.-City of Opelika v. Daniel, 59 Ala. 211; Bell v. Hall, 76 Ala. 546. There is not enough in the petition to bring in these unknown heirs, if the suit had been in the Chancery Court. Proceedings in the Probate Court to obtain a sale of land for division are statutory, and the requirements of the statute must be complied with. It must give the names of the heirs or devisees, and must state which of them are under age, of unsound mind, or married women.-Code of 1886, § 2106. Neither of these assertions can be made, nor can they be negatived, without a knowledge, or, at least, information, showing who are the heirs or devisees. In the matter pointed out above, the petition is fatally defective, and the judgment of the Probate Court is free from error.-Noles v. Noles, 40 Ala. 576; Hoard r. Hoard, 41 Ala. 590; Ford v. Garner, 49 Ala. 601; Meadows v. Meadows, 73 Ala. 356; Whitman v. Reese, 59 Ala. 532; McCorkle v. Rhea, 75 Ala. 213; Whitlow v. Echols, 78 Ala. 206; Ballard v. Johns, 80 Ala. 32; Morgan v. Farned, 83 Ala. 367; Page v. Matthews, 41 Ala. 719. This case comes before us directly. If it had been presented collaterally, rules somewhat different might possibly govern the case.-Lyons v. Hamner, 84 Ala. 197. If this case presents a hardship, the remedy is not with us. Affirmed. VOL. LXXXIV. [Steed et al. v. Knowles.] Steed et al. v. Knowles. Statutory Action of Ejectment. 1. Proof of title in plaintiff; charge as to.-Where there is no evidence showing that plaintiff's vendor was in actual possession of the land sued for at the time he conveyed to plaintiff an undivided half interest therein, though the evidence tends to prove claim of title and acts of ownership by him, the defendants being in actual possession all the time; a charge instructing the jury that, if plaintiff's vendor was in possession of an undivided half interest in the land at the time he conveyed to plaintiff, claiming the same and exercising acts of ownership over it, and if the defendants claimed under a purchase from said vendor, then plaintiff is entitled to recover, if he was ousted by the defendants, is erroneous, since the facts stated, though tending to show title in said vendor, more or less strong as they were or were not brought to the knowledge of the defendants, do not, as matter of law, necessarily show title in him. 2. Same. But a charge which instructs the jury that, if plaintiff's vendor put the defendants in possession of the land, and they claimed an undivided half interest only, while said vendor claimed the other half; and if the defendants lived on the land, recognizing said vendor's right and claim, up to the time when he sold and conveyed to plaintiff, and they afterwards ousted plaintiff, then they must find for plaintiff, asserts a correct proposition. 3. Presumption as to character of wife's estate.-Property held and owned by a married woman in 1870-71, in this State, will be presumed, in the absence of proof to the contrary, to belong to her statutory estate. 4. Judgment against married woman, or her property. In an action against husband and wife, to recover an undivided half interest in a tract of land claimed by the wife as belonging to her statutory estate, verdict being rendered for the plaintiff, it is proper to enter judgment of ouster against the wife, as well as the husband; but no judgment can be rendered against her or her property, for either damages or costs. APPEAL from Clay Circuit Court. Tried before the Hon. L. F. Box. Suit was brought by Jno. W. Knowles, appellee. The theory of the suit and the nature of the evidence pro and con appear in the opinion. Charge sir, given at the instance of plaintiff and referred to in the opinion as correct, is as follows: "If the jury believe from the evidence that Thomas Bonner, Sr., put Steed and wife in possession of the land, that Steed and wife claimed one undivided half interest in the land and Bonner the other half interest, that Steed and wife lived on the land recognizing Bonner's claim and right up to the time he (Bonner) made a deed to Knowles to the one 84 205 97 574 [Steed et al. v. Knowles.] half interest he (Bonner) claimed, if you find from the evidence he made such a deed, and if Steed and wife ousted Knowles or did that which amounts to an ouster, then the jury must find for the plaintiff, John W. Knowles.” Judgment was rendered in favor of plaintiff and against Steed and wife for the land sued for, damages for use and occupation, and costs. PARSONS, PEARCE & KELLY, for appellants. W. M. LACKEY, contra. STONE, C. J.--The testimony recited in this transcript is very voluminous, and very much in conflict. If the plaintiff's testimony be believed, he shows a clear right to recover an undivided half interest in the land. On the other hand, if the facts attempted to be established by the defendants be the true state of the case, they were entitled to a verdict. It was for the jury to weigh the testimony. Many exceptions were reserved to the introduction of testimony, but we fail to find any error in the court's ruling in that behalf. Charge 4, given at the instance of the plaintiff, is errone ous. Thomas Bonner, Sr., conveyed an undivided half interest in the lands the interest sued for to plaintiff, in August, 1877. Plaintiff founds his right of recovery on the title thus acquired. The theory of his suit is, that at that time, Thomas Bonner, Sr., and Mrs. Steed were equal tenants in common of the lands. The defense is, that Mrs. Steed purchased the lands in 1868 or 1869, that she took exclusive possession in 1871, and ever afterwards held the land, her statutory separate estate. Neither party produced documentary title, either to Thomas Bonner, Sr., or to Mrs. Steed. A deed of gift of an undivided half interest in the lands from Thomas Bonner, Sr., to Mrs. Steed, dated in 1875, was produced from the records of the Probate Court; but Mrs. Steed testified, that it was never delivered to her, and she did not know of it. Thomas Bonner, Sr., never had actual occupancy of the land. The claim of possession in him, and acts of ownership by him, and later possession by plaintiff, are sought to be established in various ways: By alleged admissions made by Steed, and sometimes by his wife; by letting the premises to rent, and receiving the rent; by letting them to rent, even to Steed himself, and in many other ways. But the testimony is in conflict on all these questions. In this [Steed et al. v. Knowles.] state of the testimony, it is not necessarily a legal truism, that "If the plaintiff's vendor, Bonner, at the time the deed from Bonner to Knowles plaintiff-was made, was in possession of an undivided half interest in the lands conveyed by it, claiming the same and exercising acts of ownership over it, and if the jury believe further from the evidence that the defendants claimed under a purchase from said Bonner, then the plaintiff is entitled to recover, if the defendants ousted the plaintiff, or did what was equivalent to an ouster." If these facts, hypothesized in this charge, were believed to be true, they tended to show title in Bonner, more or less strong, as they were or were not brought to the knowledge of defendants; but they did not, as matter of law and necessarily, prove title in him. Charge six, given at the instance of the plaintiff, asserts the correct rule. Charge two, asked by the defendants, is in the following language: "If the jury believe from the evidence that Mrs. Steed is the wife of her co-defendant A. M. Steed, then if the jury believe from the evidence that the half interest here sued for in the land is the separate estate of Mrs. Steed, they must find for the defendant Mrs. Steed." This charge ought to have been given. It is among the uncontroverted facts in this case, that at the time Mrs. Steed acquired whatever title she has in the lands at some time between 1868 and 1875- -she was the wife of A. M. Steed, and continued such up to the trial. There is neither proof nor pretense that her estate was equitable, and we must therefore presume it was statutory. De Bardelaben v. Stoudenmire, 82 Ala. 574; Steed v. Knowles, 79 Ala. 446. Being a married woman, and brought into the court as a defendant, to dispossess her of lands ascertained not to be hers, no personal judgment could be rendered against her, nor against her estate, either for the damages or costs.--Johnson v. Ward, 82 Ala. 486; Sayre v. Elyton Land Co., 73 Ala. 85; McCall v. Rogers, 77 Ala. 349; Callen v. Rottenberry, 76 Ala. 169. The court pos sessed neither power nor machinery for bringing her estate before the court and ordering its condemnation. This case is distinguishable from Haney v. Lundie, 58 Ala. 100; Lee v. Ryall, 68 Ala. 354; Askew v. Renfroe, 81 Ala. 360; Balkum v. Kellum, 83 Ala. 449. Judgment of ouster against her was proper. 84 208 93 111 84 208 97 580 [Jones, Adm'r, v. Pelham et al.] 84 208 104 199 84 208 124 266 84 208 133 380 84 208 143 458 Jones, Adm'r v. Pelham et al. Statutory Action of Ejectment. 1. Declarations of party in possession.—The declarations of a party in possession of property, explanatory of his possession, are admissible evidence as a part of the res gestæ, though not made in the presence of his adversary; but the principle does not extend to declarations respecting the source of his title. 2. Adverse possession, as between landlord and tenant.-When a party goes into possession of land as the tenant of another person, or by permission of another, his assertion of a hostile claim or title in himself, not brought to the knowledge of the person under whom he thus entered, is not sufficient to put the statute of limitations in operation; nor are his declarations asserting such claim or title in himself admissible as evidence in his favor unless connected with other evidence showing notice or knowledge thereof by the person under whom he entered. 3. Assessment of land for taxation; sufficiency of description.—An assessment of property for taxation, under the revenue law of 1868 (Sess. Acts, 1868, p. 301, § 7), in which it is described as "a house and lot on Battle street in the town of Talladega, the property of C. P.," without other descriptive or identifying words, is void for uncertainty, when it is shown that C. P. owned two adjoining houses and lots on said street. 4. Possession, actual and constructive.—Actual occupancy of part of a tract of land, under an instrument which is operative as color of title, draws constructive possession of the entire tract as therein described; but this principle does not apply where the written instrument is inoperative as a conveyance because of uncertainty and indefiniteness in the description of the land. 5. Evidence impeaching witness. -Evidence of previous contradictory statements of a witness introduced for the purpose of impeaching such witness, who had testified on direct examination as to certain statements of plaintiff's intestate, if admissible for such purpose, cannot be treated as original evidence of the facts of the case, nor be received for any other purpose than that of impeaching the witness. APPEAL from Talladega Circuit Court. This cause was revived in the name of plaintiff Jones, as administrator of one George, who had brought suit through his attorney Thomas Hayden, for certain land in the town of Talladega. George claimed title through a deed from McMillan. This deed when offered in evidence bore marks of mutilation. The bill of exceptions recites: "This witness (Thomas Hayden) having testified on direct examination, in explanation of the mutilation of the deed, that said George had stated to witness that he cut the due bill endorsed or written on the back of the deed out of the deed, in order to |