¶1 On Rehearing.
¶2 On rehearing our attention is called to the decision in Turnley v. Hanna, 82 Ala. 139, 2 South. 483, as an authority against the proposition of the first paragraph of the foregoing opinion. That decision stands alone. In Humes v. O’Bryan, 74 Ala. 71, there cited, the action was on account for goods sold and delivered, and the decision went simply to the proposition that hearsay declarations may be admitted when it is shown, that they were against the interest of the declarant when made, that he had competent knowledge of the facts stated, and that he is since deceased. Section 109 of Greenleaf on Evidence was also cited.' This citation was to some earlier edition, but we suppose the section cited appeared then as it did in the later fifteenth edition, which read as follows:
“In regard to the declarations of persons in possession of land, explanatory of the character of their possession, there has been some difference of opinion; but it is now well settled that declarations in disparagement of the title of the declarant are admissible as original evidence.”
¶3 And, of course, there has been no denial of this proposition. The section concludes as follows:
“But no reason is perceived why every declaration accompanying the act of possession, whether in disparagement of the claimant’s title, or otherwise qualifying his possession, if made in good faith, should not be received as part of the res geste, leaving its effect to be governed by other rules of evidence.”
¶4 But in the sixteenth edition, edited by Prof. Wigmore, the passage last above quoted is omitted with the statement that:
“The author here seems to be referring to a totally .different principle, or perhaps to two, as explained in the ensuing text above.”
¶5 The ensuing text above is as follows:
“But the declarations_ thus usable must be distinguished from certain other kinds of statements, admissible on very different principles, yet having a superficial analogy in that they are declarations about land: (I) If the issue involves prescriptive title and adverse possession, declarations by the possessor may be received. *196 under the verbal doctrine [verbal act doctrine] as coloring his possession; but here it is not necessary that the declarant be dead.”
¶6 And. more that we need not quote. Greenl. Ev. (16th Ed.) § 152 c. (109).
¶7 In Qhamberlayne on the Modem Law of Evidence, § 2606, the author, referring to the doctrine which admits declarations as of the res gestee of possession, says:
“It will be borne in mind … that the more obvious ground of relevancy is the circumstance that the mental state under which the possession is being held is itself a relevant fact, and that the extrajudicial statement seems to be an appropriate way of proving it.”
¶8 This supports the argument of our original opinion in this case..
¶9 In line also with the argument of our original opinion that declarations — and we meant self-serving declarations — are only admissible as explanatory of a possession otherwise shown, this court, all the justices concurring, said in McBride v. Lowe, 175 Ala. 408, 57 South. 832:
“While it is true that statements explanatory of a possession proven are admissible, yet that is a different thing from proving the possession itself by a statement. The fact that McBride said he was in possession would not prove that he was in fact in open, notorious, adverse possession.”
¶10
¶11 Application overruled.