DOWDELL, J.-
— -This is an action commenced by the appellee, plaintiff in the court below, to recover of the defendants the statutory penalty for the cutting of certain trees on plaintiff’s land. On the trial of the cause, by agreement of parties, the general issue was pleaded in short by consent with leave to give in evidence any matter which might be specially pleaded. The plaintiff, in support of the averment in the complaint of his ownership of the land upon which it was alleged that the trees were cut, offered the following documentary evidence of title: A patent from the general government to one Jesse W. Tucker; a deed from Jesse W.. Tucker and wife to A. B. Bullard; a deed from A. B. Bullard to Bartow Bullard, and a deed from Bartow Bullard and wife to J. S. W. Cawthorn, and a deed from Cawthorn and Avife to the plaintiff.. The deed from Jesse W. Tucker and Avife to A. B. Bullard Avas objected to by the defendants upon the ground that there was no attesting Avitnesses, and, though duly acknoAvledged, had not been recorded within the time prescribed by the laAV to make it self-proving, and there being no proof of its execution. This deed bore date of December 17th, 1860, and Avas therefore more than thirty years old at the time of the trial when it Avas offered in evidence. The deed Avas in the custody of the plaintiff, and it Avas also shoAvn in connection with the offer of the same in evidence that the plaintiff received it from his immediate grantor, Cawthorn, Avho claimed it as a part of his chain of title; and it Avas further shoAvn that A. B. Bullard, the grantee in this deed, had been dead for four or five years, but that during his lifetime, Avliile he- AAras claiming the land in question, he appointed one Earl as his agent to look after the same, and that said agent for ten or twelve years gave in said land for taxation for A. B. Bullard and paid the taxes on same for him. There was no evidence that either Bullard or Cawthorn Avere ever in the actual possession of said land, the evidence shoAving that the said land was Avild, unenclosed timber land having no improvements on it. The deed unquestionably comes within that class denominated ancient documents, and which are admitted in evidence without proof of execution; their admissibility as ancient documents being based upon the pre*465sumption and theory that the attesting witnesses are dead; and so well established has become this doctrine and principle that it is not changed or varied, though the attesting witnesses in fact be shown to be alive.
It is contended by appellants that in order to render the deed admissible in evidence, it was necessary, in the absence of proof of its execution, in connection with it as an ancient document, to prove enjoyment under it, or other equivalent explanatory proof, citing Beal v. Derring, 7 Ala. 124; Doc v. Eslava, 11 Ala. 1028; Carter v. Doe, 21 Ala. 72; Alexander v. Wheeler, 78 Ala. 167.
The deed here offered was Avitliout any suspicious circumstances whatever attaching to it. It was a link in the chain of title. It is found, in proper custody, and Avas receiAred by the plaintiff from his immediate grantor, Aidio Avas at the time the proper custodian of it. This in connection Avith the proof that the lands in question Avere Avild and unenclosed lands, Avith no improvements thereon, and that Earl as the agent of A. B. Bullard, the grantee in the deed, looked after the lands and paid the taxes on the same for said Bullard for ten or tAvelve years, prior to the time Bullard sold it in 1889, acts referable to the title, Avas sufficient as corroborative evidence, to admit the deed as an ancient document, Avithout other proof of its execution. This vieAv, Ave think, is clearly sustained in Doe v. Eslava, supra, where on page 1040 it is said: “An ancient deed, that is, one more than thirty years old, having nothing suspicious about it, is presumed to be genuine without express proof; and if it is found in the proper custody, and corroborated by evidence of ancient or modern corresponding enjoyment, or by other equivalent or explanatory proof, it is presumed that the deed constituted part of the transfer of property therein mentioned; because this is the usual and ordinary course of such transactions among men. The residue of the transaction may be unerringly inferred from the existence of genuine ancient documents.” Citing 1 Greenleaf on Evidence, § § 166 to 169 inclusive, and notes.
The suit Avas brought' under section 4137 of the Code of 1896, which gives to the land-OAvner a penalty for certain specified trees Avillfully and knowingly cut by an,*466other without the consent of the owner of the land. This statute has been several times passed upon and construed by this court, and being penal in its nature and character has received a strict construction. The right created by the statute is limited and confined to the owner of the land — to him who owns the legal title. As said in the case of L. & N. R. R. Co. v. Hill et al., 115 Ala. 345: “The statute is intended for the protection of the freehold from spoliation or destruction; from that which at common law would be deemed waste. The remedy is given exclusively to the owner of the freehold and he may pursue it, though he have not the possession ;” citing Allison v. Little, 93 Ala. 150; Turner Coal Co. v. Glover, 101 Ala. 289; Clifton Iron Co. v. Jemison Lumber Co. et al., 108 Ala. 581; Gravlee v. Williams, 112 Ala. 539. Chvnership of the land from- which the trees are cut is made by the statute an essential element of the right of recovery of the penalty given. The title or ownership of the land must be averred in the complaint, and if denied or put in issue by the plea of the defendant it must be proven before any recovery can be had. The right to the penalty necessarily depends upon the title or ownership of the land, and it follows that the plaintiff’s title to the land may become an issuable fact. But notwithstanding such an issue may become involved in the trial, the action is nevertheless a personal, transitory action. While the penalty given by the statute is based upon the idea and theory of a trespass committed, yet, unlike the actions of trover or detinue, for trees or timber which have been cut and severed from the freehold and converted, where actual or constructive possession of the land by the plaintiff must be shoAvn before a recovery can be had, this . statute, in terms, gives the owner of the freehold his remedy and right of action without proof of actual x>ossession. While this is true, the statute being strictly penal in its nature, we do not think that it AAras the intention and purpose of the legislature in its enactment to give such penalty as against one in the actual adverse possession of the land under color of title bona fide claiming to OAvn the same.
*467In Rogers v. Brooks, 99 Ala. 34, which was an action for the recovery of the statutory penalty for cutting trees, it is said by Thorington, J., in comment upon this statute: “It prescribes a fixed penalty for cutting trees of specified classes, and a smaller penalty for all other trees, and requires the same to he paid to the owner of the land; and this without reference to whether he was in possession of the land at the time of the cutting or not, or whether the cutting is done by a person in adverse possession of the property or not.” It might be inferred from this declaration that though the cutting he done by one in the actual adverse possession under color of title bona fide claiming to own the same at the time of the cutting, this Avould he no defense to the action brought by the owner of the land for the recovery of the penalty; but Ave hardly think it Avas the intention and purpose of the learned judge, in the language above quoted, to assert that proposition, for the reason that he had just cited approvingly the cases of Cooper v. Watson, Admr., 73 Ala. 252, and Beatty v. Brown, 76 Ala. 267, wherein a contrary doctrine is laid doAvn. It is true that the former case, Cooper v. Watson, Avas an action of trover for the conArersion of trees which had been cut and severed from the freehold, hut the latter case of Beatty v. Brown, reaffirming Cooper v. Watson, Avas an action for the recovery of the penalty under the statute, which Ave are iioav considering. In the case of Brooks v. Rogers, 101 Ala. 124, McClellan, J., speaking for the court, said: “The cases of Cooper v. Watson, 73 Ala. 252, and Beatty v. Brown, 76 Ala. 267, are clearly distinguishable from this one in that the defendants in those cases held adversely to the plaintiffs- — a fact which is of controlling importance — and the recoveries sought involved trials of the conflicting claims of title Avhich could not he adjudicated in these transitory actions. The case of Allison v. Little, 93 Ala. 150, did not involve the relation of landlord and tenant, and perhaps what is there said should be limited by consideration of the fact, which does not appear as prominently in the report *468the case and in the opinion as it should, that the wrongdoer was a mere naked trespasser who set up no claim of title to the land against the trustees — though not a tenant of the plaintiffs, he still was not in adverse possession of the premises.” It may be here observed that while the case of Brooks v. Rogers, which we have just quoted from, was an action in trover, yet the case of Little v. Allison, 93 Ala. 150, therein referred to and limited, was an action for the recovery of the statutory penalty. We think the doctrine asserted in Brooks v. Rogers, sufra, wherein it is said in effect that adverse possession is a fact of controlling importance, is the correct one. The adverse possession here spoken of and meant is' an adverse possession under color of title and bona fide claim of ownership, as distinguished from a possession by a bare and naked trespasser. It is hardly reasonable to conclude that the legislature intended by the enactment of .this statute to impose a penalty upon one in adverse possession of the land under color of title, in good faith claiming to own the same. As we have stated above, in this action for the recovery of the penalty given by the statute, the title of the plaintiff to the land is of necessity involved in the suit, and the fact that his title may be controverted by the defendant will not prevent his recovery provided he sustains his averment of title or ownership, there being no conflicting claim of title set up, yet if the issues as made up under the pleadings involve a trial of conflicting claims of titles of the parties to the suit, and such as would arise out o'f the defense of an adverse possession by the defendant under color of title and bona -fide claim of ownership, if such defense be sustained by the proof, the plaintiff would be defeated in his right of recovery of the penalty for trees cut by the defendant during such adverse possession and bona -fide claim of ownership. And it may be observed here that it is the status of the adverse possession and bona fide claim of ownership at the time of the alleged cutting of the trees that is the material inquiry, and not the status at the date of the trial of the use. The fact that the plaintiff in March, 1897, called ndants’ attention to defects in their tax title did not t it as color of title nor prevent possession under *469it from being adverse. — Manley’s Admr. v. Turnipseed and Wife, 37 Ala. 522.
It is sliOAvn by the evidence on the part of the defendants that the defendants Avent into possession of the land upon Avhich the alleged trees Avere cut in 1894 under a certificate of purchase made by them at a tax sale in said year, and continued in possession of the land, claiming to oavu the same, and that after the expiration of tAVO years from the date of said tax sale they received a tax deed. This' deed, hoAvever, they failed to record, and when the same was offered in evidence by the defendants in connection with the proof that they had gone into possession of the' land under the certificate issued to them, it Avas expressly stated that the tax deed Avas offered only as color of title, and it Avas so received in evidence. The tax deed Avas not offered as muniment of title. It Avas also shown in evidence by the defendants that the land in question had no improvements upon the same and Avas practically of little or no value except for the timber thereon; that they'continued in open, notorious possession of the same, cutting timber therefrom, during the years ’95, ’96 and ’97, doAvn to the institution of this suit, during all this time claiming to oavu said land, and Avere so in possession and claiming to oavu such land at the time of the cutting of the trees for Avhich this suit Avas brought. Under this evidence, we think the court ei’red in refusing Avritten charges, B, C and F, each of Avhich contained correct legal propositions. Charges G- and II Avere bad, in ignoring the element of good faith, or the bóna fi.de claim of OAvnership or title. A mere adverse holding even under color or claim of title is not alone, sufficient to defeat the plaintiff’s right to recover the penalty under the statute, if such adverse holding has not ripened into a title by the lapse of ten years. But if such adverse possession be accompanied Avith a bona fide claim of title or ownership of the land, though short of the period of ten years, the defense Avould be complete, as the cutting of the timber under such circumstances, would not be knowingly and willfully done within- the meaning of the statute.
There Avas evidence also on the part of plaintiff tending to shoAV fraud in a change and alteration of the *470records as to the assessment, advertisement and sale of the lands under which the defendants claimed to be purchasers and upon which was based their color of title offered in evidence. If the color of title offered in evidence by the defendants was procured by fraud with, which they were connected, then such would tend to impeach the bona fides of their claim of ownership, and if their possession of the land in question was so obtained, and the trees.were cut by them during such possession, then the defense of a bona fide claim of ownership would fail.' — Snodgrass v. Branch Bank of Decatur, 25 Ala. 161. Under this theory of the case, the court very properly refused to give the affirmative charge requested by the defendants. The affirmative charge should never be given when there is any material conflict in the evidence, or when there is evidence which authorizes a reasonable inference of facts unfavorable to a right of recovery by the party asking such charge.
Charge designated A, requested by the defendants, exacted an improper standard or measurement of proof. The charge would have been good if it had been predicated upon reasonable satisfaction by the jury from the evidence, instead of the expression used in the charge, “if the jury are reasonably persuaded from the evidence.” This charge, for the reasons stated, was properly refused.
As the tax deed offered by the defendants was not offered as muniment of title, but ivas expressly limited as color of title, charges 1 and 2 given by the court at the request of the plaintiff were misleading in their tendencies and we think manifestly calculated to injure and prejudice the rights of the defendants. If the tax deed had been offered as muniment of title, the giving of these charges would not have been improper, but as it was not so offered, there was no issue on the tax title as a muniment, and the natural tendency of the charges given were to destroy it even as color of title, or at least reasonably calculated to prejudice in this respect, and the charges given should have been refused.
For the errors pointed out, the judgment of the circuit court must be reversed and the cause remanded.
Reversed and remanded.