¶1— The undisputed evidence in this case shows that prior to the time appellee Blue went into the possession of the lot in question, Mrs. Mary Hammond, for herself and her minor children, had possession of the same under a claim of ownership; that said, Blue went into possession under an agreement with Mrs., Hammond, by which he was permitted to enclose said lot under a fence with other land, and furthermore, that he would deliver up the possession of the same to1 Mrs. Hammond on demand. By this agreement, the relation of landlord and tenant was, in effect, created. The possession by Blue having been so acquired, he was estopped from denying the title of Mrs. Hammond without hav-. ing first surrendered the possession. The tenant may not set up title in himself, or an outstanding title, to defeat a recovery of the possession of the land by the landlord, unless he can show that he has acquired the, landlord’s title since the creation of the tenancy or that the title of the landlord has expired.—Elliott v. Dyke, 78 Ala. 155; Wells v. Scherer, 78 Ala. 142; Rawson v. Erwin’s Admr., 38 Ala. 45; Abbott v. Page, 92 Ala. 574. The court erred in refusing the affirmative charge as requested by the plaintiff.
¶2We have been unable to find any statute which makes. competent and admissible in evidence the tract book and entries in the same offered and admitted in evidence in this case. In the absence of any statute rendering the same competent in evidence, it was undoubtedly inadmissible. The original patent, or a certified copy of the same, was the highest and best evidence of the grant from the United States government to the patentee. Code of 1896, § § 1812, 1813; Tillerson v. Ewing, 91 Ala. 436; Knabe v. Burden, 88 Ala. 436.
¶3It is not enough to show that a party is not in pos-, session of the original document or paper to render sec*341ondary evidence of the same competent and admissible. The statute requires more. He should also prove that he has not the control of such original.—Code of 1896, § 992; Jones v. Hagler, 95 Ala. 529; Farrow v. N. C. & St. L. R’y, 109 Ala. 448.
¶4There are other assignments of error, but as it not likely that the questions will arise under another trial, we deem it unnecessary to consider the same. For the errors pointed out, the judgment of the circuit court is reversed and the cause remanded.