has levied an execution on personal property, and doubts shall afterwards arise whether the right of the property is in the debtor, the sheriff may apply to the plaintiff for a bond and security to indemnify him against the sale of the property, which if the plaintiff fails to give for ten days after such application, the sheriff may restore the property to the possession of him from whom it was taken and discharge the levy: Clay's Dig. 210; Pickard v. Peters, 3 Ala. 493. After the property is returned and the levy discharged, the plaintiff can not compel the sheriff to levy again unless he executes the bond of indemnity which has been required of him. He has not therefore the right to subject the property to the satisfaction of his execution until the bond is given, for it would be absurd to say that a plaintiff had the right to subject property to the satisfaction of his execution, but not the right to coerce the sheriff to make the levy. The right or lien of the plaintiff is therefore suspended from the time the property is restored to the possession of him from whom it was taken, and can only be revived by the subsequent giving of the bond or a subsequent levy without it, which the sheriff may but is not compelled to make. The defendant purchased the slave when the lien of the plaintiff was suspended or destroyed from his own neglect to give the bond required. We therefore hold that the title of the defendant, he being a bona fidc purchaser, is superior to the lien of the plaintiff's execution. The charge of the court conforms to the view we have taken, and consequently the judgment must be affirmed.

LIEN OF EXECUTION DOES NOT ATTACH TILL DELIVERY OF WRIT TO SHERIFF: See Beals v. Guernsey, 5 Am. Dec. 348; Haggerty v. Wilbur, 8 Id. 321; Cresson v. Stout, 8 Id. 373; Beals v. Allen, 9 Id. 221; Collingsworth ▾ Horn, 24 Id. 753; Milton v. Riley, 25 Id. 149.

EXECUTION LIEN IS NOT RIGHT IN PROPERTY ITSELF, but a right to levv upon the property to the exclusion of interests subsequently acquired: See Lynn v. Gridley, 12 Am. Dec. 591.

SUSPENSION IN PROCEEDING AFTER LEVY RENDERS EXECUTION Dormant, and a purchaser for value during such suspension acquires title: See Hickock v. Coates, 20 Am: Dec. 632.

THE PRINCIPAL CASE IS CITED, arguendo, in Branch Bank at Decatur v. McCollum, 20 Ala. 280, and distinguished from that ease; it is also cited in Cotton v. Thompson, 25 Ala. 680.

THOMPSON v. MAWHINNEY & SMITH.

[17 ALABAMA, 362.]

DECLARATIONS BY PARTY IN POSSESSION OF PROPERTY, descriptive or explana tory of such possession, are usually admitted in evidence, but his declarations in regard to the contract by which he acquired possession are not admitted.

TENANCY IN COMMON IS CREATED BETWEEN LESSEE AND LESSOR, in the yearly profits of a farm, before division, where the consideration of the lease is a share of such yearly profits.

POSSESSION OF ONE TENANT IN COMMON IS POSSESSION OF ALL, but where one tenant parts with his right to possession he ceases to be a tenant in

common.

MERE AUTHORITY TO SELL JOINT PROPERTY given by one joint tenant to another does not exempt the share of the former from levy and sale under execution.

TROVER by Mawhinney & Smith against plaintiff in error, Thompson, to recover for fourteen bales of cotton, which he as sheriff had levied upon, under an attachment issued against Samuel H. Weir. Mawhinney & Smith introduced evidence tending to show that they entered into a contract with Weir, in the year 1845, by which they were to take charge of and cultivate his land, and have the entire management thereof; that they were to plant it in cotton and corn, to sell the cotton, and the net proceeds thereof, together with the corn, should be divided equally between them and the said Weir. They further showed that the farm was cultivated and managed in accordance with said agreement in the year 1845, that the corn was divided, and that the cotton, after being ginned and baled into twentyseven bales, was marked with the name of Mawhinney & Smith, and hauled to the river, where the defendant levied upon fourteen bales. Declarations made by Mawhinney & Smith in February, 1845, and in October of the same year, to the effect that they were in possession under said Weir, that the crop of cotton was theirs, independent of the control of Weir, who was not to share in it until it was sold by plaintiff, were offered in evidence. To this evidence the sheriff objected, but the objection was overruled and the evidence admitted as explanatory of defendant's possession. Plaintiff introduced evidence tending to show that by the contract between Mawhinney & Smith and Weir, the latter was to have half of the cotton as well as the corn. The question then arose as to whether Weir had such an interest in the cotton as was subject to sale under execution. The jury was instructed by the court that if they believed from the evidence that Weir was not to have one half of the cotton, but

one half of its net proceeds, he did not have such an interest as was subject to be levied upon, and they must find for Mawhinney & Smith the value of the fourteen bales, with interest. The sheriff excepted to the rulings and charge of the court, and now assigns them as error.

Ormond, Reavis, and Pryor, for the plaintiff in error.

R. H. Smith, for the defendants.

By Court, DARGAN, C. J. The first question presented for our consideration is, whether the declarations of one of the plaintiffs, in reference to the contract between them and Weir, should have been admitted as evidence. They were made after the contract had been completed, but whilst the plaintiffs were in possession of the land, and tended to show that the title and control of the cotton that should be raised was exclusively theirs; that Weir was not to hold or have any control over it, but was to receive one half the proceeds when it was sold. Where the declarations of a party are offered as evidence in his favor, in order to entitle them to be received, they must form a part of the res gesta-that is, they must form a part of the act done, or be so connected with it as to be inseparable from it, and being thus connected with the transaction itself, they become evidence explanatory of the act. But if the declarations are merely a narrative of a past occurrence, they can not be received as evidence: Greenl. Ev., secs. 109, 110; Cox v. Easley et al., 11 Ala. 362; McBride and Wife v. Thompson, 8 Id. 650. It is true that the declarations of a party against his interest are evidence against him, and declarations or admissions made by one in possession of property descriptive or explanatory of such possession are usually admitted, but whilst it is permissible to prove the statements of one in possession as explanatory thereof, his declarations in regard to the contract by which he acquired possession can not be received as evidence: McBride and Wife v. Thompson, supra. Such declarations would not be merely explanatory of the possession, as that the party in possession was the agent or tenant of another, or that he only had a life estate or other less interest, but would be a narrative of the contract, and being in no manner connected with the possession, would be inadmissible as evidence in favor of the party making them. This view shows that the court erred in admitting the declarations of one of the plaintiffs as evidence of the terms of the contract between them and Weir which had been some time before consummated and perfected.

AM. DEC. VOL LII-12

The charge of the court complained of is predicated upon the following facts: In 1845 the plaintiffs entered into a contract with Weir, by which it was agreed that they with two minor sons of Weir should cultivate his farm during that year in corn and cotton. The corn was to be equally divided between Weir and the plaintiffs, but the cotton was to be sold by them, and after paying the expenses the net proceeds were to be equally divided between the plaintiffs and Weir. The corn had been gathered and divided, the cotton had been ginned and hauled to the river, and was marked in the plaintiffs' names. The court charged the jury that if they believed that Weir was to receive one half of the proceeds of the cotton, and not one half of the cotton, that then he had not such an interest as was subject to levy and the plaintiffs were entitlęd to recover.

We think it depends on the legal effect of the contract whether Weir had such an interest in the cotton as was the subject of levy and sale at law. If the contract could be construed as creating a tenancy between Weir and the plaintiffs, it would then be very clear that he had no title to the product raised upon the land, for it is of the very nature of a lease that the tenant shall have the possession of the land and the title to the profits or products grown upon it. What the nature of this contract is, and what rights the parties took under it to the product raised on the land, is best solved by a reference to the authorities. In the case of Putnam v. Wise, 1 Hill (N. Y.), 234 [37 Am. Dec. 309], the facts were that the owners of a farm agreed with two persons, by contract under seal, that the latter should occupy and work it for a year, the occupiers agreeing to yield and pay the owners one half of the grain growing upon it; the court held that until there was a division of the product the parties were tenants in common of it. In Bradish v. Schenck, 8 Johns. 151, Curtiss took the land of the plaintiff to work it one year on shares, and planted it in corn. The hogs of the defendant broke into the inclosure and did damage to the corn, for which Schenck, the owner of the land, brought trespass. The court held that the contract did not constitute a lease, and therefore the suit was properly brought in the name of Schenck alone for the trespass done to the freehold, although the contract made the owner and Curtiss tenants in common of the corn. In the case of Maverick v. Lewis, 3 McCord, 211, it was said that where the agreement was to take charge of a farm and work it on shares, the relation of landlord and tenant was not created. In Walker v. Fitts, 24 Pick. 191, it was held that where one agreed with

another to cultivate his farm for one season, and to pay him one half of the crop, a tenancy in common is created between the parties as to the product of the farm, until it is divided. These authorities sufficiently show that the plaintiffs and Weir were tenants in common of the corn and also of the cotton, unless by the contract the legal title to the cotton vested exalu sively in the plaintiffs. Tenants in common are such as hold by several distinct titles, but by unity of possession, because none knoweth his own severalty, therefore they all occupy promiscuously: 2 Bla. Com. 191. And this tenancy exists where there is a unity of possession merely.

In the case of Blessing v. House, 3 Gill & J. 290, the court said that it was an essential attribute of a tenancy in common that there should be a unity of possession. Unity of possession therefore is the very essence of a tenancy in common, and without it this tenancy can not exist. It is true that the possession of one tenant is the possession of all, because all are entitled to the possession, but if from any contract or agreement one tenant shall part with his entire right of possession, we do not see how he can continue a tenant in common. To be a tenant in common or a joint tenant, one must have such a title as will authorize him to take and hold possession, and if he can never be entitled to the possession nor to the control of the chattel, we are unable to perceive what legal title he can have. Indeed, the right to the possession and enjoyment of property constitutes our title to it at law, and when we are so situated in reference to it that we can never legally claim possession, our legal title is gone. If then the terms of the contract were such as to exclude Weir altogether from the possession of the cotton-if consistently with the contract he could never be entitled to the possession, he can not be a tenant in common, for possession or the right to possess is an indispensable requisite of such a tenancy. But if the terms of the contract were not such as to exclude him altogether from the possession; for instance, if the plaintiffs only had the authority to sell the cotton but not the exclusive right of possession, the bare authority to sell would not exclude the right of possession in Weir, and consequently he would still be a tenant in common and his interest liable to levy and sale. These, we think, are the principles that must govern this case at a future trial, and we do not deem it necessary to enter into a particular examination of the charge, as the case must be reversed for the error we have before noticed. It may, however, be observed, that the charge