Learned v. Matthews

40 Miss. 210

• Court: Mississippi Supreme Court
• Decided: April 15, 1866
• Status: Published

Opinion

Ellett, J.,

delivered the opinion of the court.

The plaintiffs in error on the 17th day of August, 1858, commenced an action of ejectment, in tlie Circuit Court of Oopiali county, against the defendant in error, to recover a tract of land in said county, containing two hundred and sixty acres, and being the north half of the north-east quarter of section three, township nine, range seven east; the south-east quarter of section thirty-four, and the west half of the ^)uth-west quarter of section thirty-five, township ten, range seven, east. The defendant pleaded not guilty. At October Term, 1860, a verdict was found for the defendant, and the plaintiffs moved for a new trial, on the ground that the court erred in overruling the motion of the plaintiffs to rule out the evidence offered by the defendant. The motion for a new trial was overruled by the court, and a bill of exceptions was signed setting forth the evidence given and the proceedings had upon the trial. Prom this bill of exceptions it appears that the plaintiffs proved the entry of the land in controversy, in the United States Land-office, by Edward D. Learned, in 1835 and 1836; and also that the said Edward D. Learned was married on the last day of January, 1825, and died on the 27th of September, 1837; and that the plaintiffs — Charles E. Learned, who was born IVIay 15,1826, and Rufus E., who was born December 26, 1831 — are his only surviving heirs-at-law.

It was agreed that all the evidence on the part of the defendant should be given subject to be excluded and ruled out by the court, on motion of the plaintiffs, after the evidence on both sides should be finally closed, when all objections to the evidence should be stated, argued and submitted, as though taken at each step in the progress of the cause.

Subject to this agreement, the defendant gave in evidence an act of the legislature of the State, approved February 13,1810, entitled “ An act for the relief of Buckner Harris,” as follows:

. “ Whereas, the Honorable Buckner Harris has become the administrator in the county of Hinds, of the estate of the late Édward D. Learned, deceased; and whereas the estate of the said deceased consists chiefly of land which is situate in the county of Copiah, where the said Buckner Harris resides; and whereas it is attended with great inconvenience to said administrator (being a public functionary), to attend tbe Probate Court of said county of Hinds, and would be to tbe advantage of said estate to bave tbe same administered in tbe county of Copiab.

Therefore, Sec. 1. Be it enacted, etc., That tbe judge of probate in and for tbe county of Hinds be and be is hereby authorized and required, at tbe cost and charges of tbe said Bunkner Harris, to transfer and transmit to tbe judge of probate of the county of Copiab, a full and complete copy of tbe record of all proceedings heretofore bad in tbe Probate Court of said county of Hinds, in relation to the estate of said Edward H. Learned, deceased, together with tbe original administration bond entered into by said Harris.

Sec. 2. Be it, etc., That the probate judge in and for tbe county of Copiab, be and be is hereby authorized and required to receive said record and original bond, and to enter the same on tbe records of this court, and to require tbe said Buckner Harris to administer and conduct tbe affairs of said estate, and account for tbe same, in tbe same manner as if letters of administration bad been'originally granted by tbe Probate Court of tbe county of Copiah.

Sec. 3. Be it, etc., That this act shall be in force from and after its passage.

Tbe defendant then gave in evidence an order of tbe Probate court of Copiab county, at April Term, 1841, “ that the transcript of tbe proceedings of Buckner Harris, administrator de bonis non of tbe estate of Edward D. Learned, deceased, from tbe Probate Court of Hinds county, be received and filed for record.”

Also a copy of tbe said transcript, which contains tbe bond given by B. Harris as administrator de bonis non of E. H. Learned, dated July 22, 1839, and purports to contain “tbe proceedings bad and done in relation to tbe estate of Edward D. Learned, deceased, in the Probate Court of Hinds county, since Buckner Harris, the administrator de bonis non, has taken the estate into bis charge; ” and it is certified by tbe clerk of the Probate Court of Hinds county, to be a true copy from tbe records of bis office, “ so far as Buckner Harris, administrator de bonis non, has administered said estate.”

Defendant also gave in evidence a copy of a petition filed by Harris, as administrator de bonis non of Learned, in the Probate Court of Copiah county, at April Term, 1841, representing briefly, that the personal estate is insufficient to pay the debts due by said deceased, and praying an order for the sale of the real estate. This petition is dated April 19, 1841, and is signed by Harris, but not sworn to.

Also, an order of the said court made at June Term, 1848, as follows: “ Ordered, that notice by citation be given to all persons interested in the real estate of EdwardD. Learned, deceased, commanding them to be and appear before the Probate Court of Copiah county, at the court-house thereof, on the third Monday, the 21st day of August next, to show cause, if any they can, why the administrator de bonis non of the estate of Edward D. Learned, deceased, should not then be authorized to sell all the real estate belonging to said estate, for the benefit of the creditors of the said estate, and that said citation be published according to law.”

Also, an order of the same court made at August Term, 1843, reciting that the court was satisfied that the personal estate of Learned was not sufficient to pay the demands against it, and that due notice had been given according to law to all persons interested to appear at that term to show cause, etc., and ordering the administrator de bonis non of said Learned to expose to public sale on a credit of twelve months, a large quantity of land, particularly described in the ordex-, and embracing the land in controversy in this cause.

The defendant then read in evidence a deed from B. Hands, administrator of Learned, to Geoi’ge M. Barnes, dated May, 1844, and acknowledged February 1, 1845, reciting a rule made May 13,1844, under the last-named order, and conveying a lai’ge portion of said laixd (containing 3,568^/¶- acres), including the land in controversy, to said Bames, for the price of $650. Also, a deed from Bames and wife to defendant for the land in controversy, dated Febraaiy 2, 1853.

George M. Barnes, the purchaser at said sale, was examined as a witness, and testified that the sale was regularly advei--tised, and that it was a bond fide purchase and sale, and that he’ bid off the land at the salo, and paid the purchase-money by giving credit for the amount on a judgment in favor of Joseph Cooper against the administrator of Learned. Witness also stated that in November, 1847, said Harris sent for him and told him he wanted to make a final account and report of sale of the lands of the estate of E. D. Learned. He recognized the original account and report produced and shown to him. Witness wrote them under the direction of Harris, the administrator. The account was sworn to and signed by Harris before the judge of probate, and the report of sale was signed by him; and the account and report were both returned by Harris to the Probate Court at November Term, 1847, and delivered to the clerk.

The said account and report were read in evidence. The former shows that the money received on the sale of the land, and also the sum of $500 received from Joseph Cooper for the sale of the lot in Jackson, were credited on a judgment in favor of said Cooper. The latter is a full and formal report of a sale of the town lot in Jackson, on the 15th off September, 1842, under an order of the Probate Court of Copiah county made at June Term, 1841, to Joseph Cooper, for $500; and also of the sale of upwards of three,thousand five hundred acres of land in Copiah county to George M. Barnes and Thomas E. Wheeler, on the 13th of May, 1844, under the order made at August Term, 1843, for the price of $780. This report is not under oath, and it is admitted that it, and also the account, were indorsed by the clerk, filed November 17, 1847.

E. D. Brower was also examined as a witness on the part of the defendant, and testified that about November, 1847, he had been elected clerk of the Probate Court of Copiah county, and was not well versed in his duties ; that the papers were rather loosely kept; that about that time a fire occurred near the court-house, the jail being burned; that the papers were thrown out, and some of them he could never after arrange or get in their proper places; and that many papers were filed that should have been recorded, but were not.

On inspection of the minutes of the court, it appeared that the court was open on the 15th and 16th days of November, 1847, but not on the 17th. Thomas E. Wheeler, another witness for defendant, testified that he was present at the sale and bought a piece of land for his brother; that he first knew of the sale by seeing the advertisements; and that the sale was public, and made at the court-house door.

The foregoing was all the evidence on the part of the defendant.

The plaintiff, then gave in evidence a full transcript of all the proceedings had in the Probate Court of Copiah county in the administration of the estate of said deceased, whereby it appeared that, at April Term, 1841, on filing the above-mentioned petition of Harris, the administrator, dated April 19,1841, representing the insufficiency of the personal estate to pay the debts, and praying an order for the sale of the real estate, an order was made that citation issue to all persons interested in the lands and tenements of E. D. Learned, deceased, to appear at the dune Term, 1841, to show cause why an order should not be made for the sale of section 6, township 10, range • — , east; the north-west quarter of section 17, township 10, range 7, east; and section 9, same township and range, all in Copiah county, and also one town lot in the city of Jackson.

At June Term, 1841, an order was made which cited that, at the preceding April term, B. Harris, administrator de bonis non of E. D. Learned, deceased, had filed an application for an order to sell the following real estate (describing the land as in the previous order); that citation had been thereupon ordered, and had been duly published; whereupon W. Barnes, administrator of Mason Reynolds, filed objections to the granting of the order for the sale of the lands above described, lying in Copiah county, which objections were considered,by the court as valid and sufficient, and it was therefore ordered by the court that the application, so far as it related to the land in Copiah county, be dismissed, and that the said administrator be authorized to sell the town lot in the city of Jackson.

At June Term, 1842, without any further showing of the insufficiency of the personal estate, a citation was ordered, and at September Term, 1842, a sale was decreed of part of lot 14 in the town of Gallatin.

Then follows in the record the order made at June Term, 1843, already above set forth, and the order of sale made thereon at August Term, 1843, under which the land in controversy was sold.

To show that a full record has not been transmitted to Copiah county, as required by the act of the legislature, plaintiffs gave in evidence a transcript of all the proceedings in the Probate Court of Hinds county, showing that the widow of Learned had been appointed his administrator, at October Term, 183T, and had administered the estate until her letters were revoked in March, 1839.

In May, 1838, she had represented that the personal estate was insufficient to pay the debts, and had prayed an order for the sale of the real estate, but no proceeding appears to have' been taken upon it. At January Term, 1839, she had made a full report of the debts and assets of the estate, showing that the real and personal estate were insufficient to pay the debts, and thereupon the court had declared the estate insolvent, and had appointed commissioners to receive and report claims. No further step appears to have been taken with a view to the distribution of the estate among the creditors.

The plaintiffs also offered a copy of the bond of Harris, as administrator d& bonis non, certified by the clerk of the Probate Court of Hinds county, on the 22d day of August, 1860, who states, in his certificate, that the “ said original bond is now on file and record in my office.”

The evidence being closed, the plaintiffs, in pursuance of the agreement, moved the court to rule out all the evidence on the part of the defendant, on the following grounds, to wit:

1. The special act of the legislature for the relief of Buckner Harris is unconstitutional and void, being in conflict with section 18, article 4, of the constitution of the State.

2. The said act confers the powers upon the judge, and not upon the Probate Court of Copiah county.

3. The probate judge of Hinds county did not transfer and transmit to the probate judge of Copiah a full and complete copy of the record of all the proceedings had in relation to the estate of Learned, together with the original administration bond of Harris.

4. The appointment of Harris was void, because the record does not show any fact giving jurisdiction to the Pi’obate Court of Hinds county to grant administration in chief to the widow of Learned.

5. The sale was inoperative, because never reported to, or confirmed by, the Probate Court.

This motion was overruled. The case went to the jury without instructions, and a verdict having been found for the defendant, the motion made for a new trial was likewise overruled.

The question of the constitutional power of the legislature to pass the “Act for the relief of Buckner Harris,” under the operation of which this case has-arisen, was expressly waived • on the argument in this court, and the objections to the juristion of the Probate Court of Copiah county to decree the sale under which the defendant holds the land in controversy, were vestpd entirely on two grounds:

1. The first of these is that the probate judge of Hinds county did not transfer and transmit to the judge of the Probate Court of Copiah county, a full and complete copy of the record of all the proceedings had in Hinds county in relation to the estate of Learned, together with the original administration bond entered into by Hands.

The argument in support of this objection is, that the jurisdiction of the Probate Court of Copiah county was derived from the special act of the legislature; that the transfer of the jurisdiction from the Probate Court of Hinds was the execution of a power created by law ; and that such power must be executed strictly, in the mode pointed out by the statute; and authorities are cited to show that equity will not relieve against the defective execution of a power created by law. The principle is of very general application that, at law, every naked power, properly so called, must be strictly executed, and all prescribed formalities duly observed. It prevails not only between private persons, but-applies also to tbe acts of public officers, as tax-collectors and' tbe like, and also to tbe proceedings of inferior courts of special and limited jurisdiction. But tbe question in tbe present case is not tbe mere execution of a power, tbe conditions of wbieb are ascertained, but whether tbe jurisdiction of tbe Probate Court of Copiah county over the administration of tbe estate of Learned, was made by tbe statute entirely contingent upon tbe previous transmission to that court of “ a full and complete copy of tbe record of all tbe proceedings in relation to tbe estate ” previously bad in Hinds county. This depends upon the proper construction to be put upon tbe act. Tbe power of tbe legislature to transfer tbe administration of tbe estate from Hinds to Copiah county, either with or without conditions, was not denied in tbe argument, and could hardly be successfully disputed. An attentive consideration of tbe language of tbe act in question shows clearly that tbe paramount object and intention of the legislature was to transfer tbe administration from one county to the other, and that tbe provisions in relation to the transmission of the record are only auxiliary to tbe main intent, and were designed to afford tbe court in Copiah tbe means of acting intelligently in the administration. Some foundation was necessary to be laid for tbe exercise of the jurisdiction, and tbe duty of laying that foundation was devolved by the act upon tbe judges of the two courts. It was made tbe duty of one of them to transfer and transmit tbe record, and of tbe other to receive and record it. This duty these officers undertook in good faith to discharge. They were obliged to determine for themselves, in tbe first instance, what was required of them. Tbe one did transfer and transmit such a transcript as in bis judgment fulfilled tbe demands of tbe law. Tbe other received it, and by an order entered in tbe minutes of his court, directed it to be filed for record, and thereby adjudged it to be a compliance with tbe statute. It did contain all that related to tbe administration of Harris, but it omitted the proceedings that had taken place during the administration of Mrs. Learned. There is no suggestion that tbe omission was wilful or fraudulent. A strict and literal interpretation of tlie act perhaps contemplated that all these proceedings would have been sent, but a failure to do so cannot be held to oust the court of the jurisdiction which it was plainly intended to confer upon it. The argument of the plaintiffs goes to the full extent that the omission of a single paper, or of a single entry, or any error in transcribing any of the proceedings, would render all the acts of the Probate Court of Copiah county absolutely void, though the administration might have been conducted there for years, and the most important rights vested under it. It is gratifying that our duty does not require us to give our sanction to such a proposition. We think, on the contrary, that the Probate Court of Copiah county became invested with jurisdiction over the administration of the estate of Learned, by virtue of the operation of the act of the legislature, and that its power was not impaired by the omission of a literal compliance with the directions of the statutes in reference to the transmission of the record.

2. The second ground of objection to the jurisdiction of the court to make the order of sale is this: that the petition 'of Harris, filed April 19, 1841, praying an order for the sale of the real estate of Learned, was finally dismissed as to the lands in Copiah county, at June Term, 1841, and that the subsequent proceedings had on said petition, by citation, returnable to August Term, 1843, and the decree then made for the sale of the land, were and are for that reason, corcmn own judice, and void.

This point, though much pressed in the argument here, is not shown by the record to have been raised in the court below. Moreover, it appears to be based upon an erroneous view of the facts of the case. Taking the whole record together, the history of the proceeding seems to be this : On the 19th of April, 1841, Harris, as administrator de honis non of Learned, filed his petition, representing that the personal estate of Learned was insufficient to pay the debts, and praying an order for the sale of the real estate of said deceased. On this petition an order was made, that citation issue to all persons interested, to appear at June Term, 1841, a.nd show cause against an order for the sale of sections 6 and 9, and part of 17, township 10, range 7, east, in Copiah county; and also a town lot in the city of Jackson. None of the land in controversy was embraced in this order.

At June Term, 1841, an order was made, reciting that on the 19th of April, 1841, Harris had filed his application for an order to sell the said sections 6 and 9, and part of 17, in Copiah county, and the lot in Jackson; that citation had been ordered; and that one proof of citation had been made; and that thereupon "William Barnes, administrator of N. Reynolds, had filed objections to the granting of the order of sale of the lands above described, lying in Copiah county, which objections were considered valid and sufficient, and the said application, so far as related to the land lying in Copiah comity, was dismissed, and an order was made for the sale of the lot in Jackson.

It thus appears that the application was narrowed down by the order for citation so as not to include any of the land now in dispute, and so as to apply to a very small portion of the the land owned by Learned in Copiah county; and its dismissal was therefore no adjudication at all in regard to the propriety of a sale of this land, and forms no obstacle to a subsequent application to the court in regard to it. The original petition itself was not wholly dismissed, but it was retained as the report by the administrator, of the insufficiency of the personal estate to pay the debts, and as the foundation of the order for the sale of the lot in Jackson. In decreeing the sale of that lot, upon the petition then filed, the court necessarily adjudged that the report was true, and that the personal estate was in fact insufficient to pay the debts. The application was dismissed only so far as regarded the prayer for the sale of the particular property in Copiah county named in the citation, and remained in court for all other purposes.

The subsequent proceedings instituted at June Term, 1843, and consummated by the- final decree at August Term following, do not expressly refer to, or connect themselves with the former proceedings in 1841. They contain no allusion to the original petition, and do not profess to be based up»n it; but, on the contrary, purport to be distinct, and independent of it.

It is unnecessary to anticipate the question whether, after the dismissal of the first application, as to the land embraced in it, the same land would have been subjected to a decree of sale on the subsequent application. The objections made by the administrator of Reynolds may have been conclusive, or otherwise, in their character. What they were does not appear. They may have been rather in abatement, than in bar; and, if the latter, it might be doubtful whether any persons but the representatives of Reynolds could plead the dismissal as final. We express no opinion on those points, nor on the question whether the dismissal of one' application for the sale of real estate for the payment of debts, will, under all circumstances, bar a second application for the same purpose.

The view we have taken disposes of the objection raised in the argument on the ground of res adgudieata, and shows that the doctrine of the conclusiveness of the decrees of the Probate Court, and of the want of power to set them aside after the Term, is not involved in this case. Rut the question remains whether the order of sale was based upon proceedings sufficient to give the court jurisdiction to pronounce it.'

All that appears is the order made at June Term, 1843, directing the issuance of citation, and the decree made at August Term, 1843, ordering the sale. These are remarkably full, complete, and technical. There was, however, no written petition or application filed, nor was there any report, under oath, of the debts and assets, showing the necessity for such sale. Both these points appear to be fully covered by the decision in Eldridge v. McMakim, 37 Miss. 72. No petition' in writing was required by the statute under which this order was made (Hutch. Code, 666, § 98); and though an account of the personal estate and debts is required to be made and exhibited on oath, it is decided, in the case j.ust quoted, that its omission does not affect the jurisdiction of the court, so as to make void a decree of sale pronounced without such account having been exhibited. * But, in the present case, the former report of this administrator, presented at April Term, 1841, representing tlie insufficiency of the personal estate, and tbe judgment of tlie court tben given in affirmation of its truth, were of record, and rendered any further representation by the administrator on that subject altogether superfluous and unnecessary. Indeed it now appears, though the Probate Court was probably not aware of it at the time, that as far back as 1839, the estate had been regularly reported and declared to be insolvent, during the administratorship of Mrs. Learned.

3. But if the court had jurisdiction to make the order of sale, it is insisted that the proceedings under it are inoperative to divest the title of the plaintiffs, because the sale was not reported to, and confirmed by the court.

The sale was made on the thirteenth day of May, 1844, and no report was made until the seventeenth day of November, 1847. At the latter date a formal report, not however under oath, was made out, and filed with the clerk of the Probate Court of Copiah county, the court not being in session, and no action appears ever to have been taken upon it.

The statute under which the sale was made (Hutch. Code, 667), provides that “ the executor or administrator making such sale shall make report in writing of all the proceedings therein to the next Orphan’s Court after such sale; ” but there is no express requirement that the court shall confirm the report. The question as to the necessity of such confirmation has, however, frequently been before this court, and we regard it as settled that a sale of land, under a decree of the Probate Court, is not operative to pass the title to the purchaser, until the sale has been reported and confirmed.

In the case of Smith v. Denson, 3 S. & M. 326, the appellant filed his petition in the Probate Court in 1842, to set aside a purchase of land made by him at administrator’s sale in 1838, alleging various irregularities in the proceeding, and stating that no report of the sale had been made. This court, in deciding the case, uses the following language : “ If, then, the court (Probate) has power to set aside the sale, the proper time to do so is when the administrator makes his report. Until tben the proceeding is not final; there is no judgment ratifying . or approving the sale. If the administrator fails to make his report, the court may compel him to do so.” This language was employed in a case where four years had elapsed after the sale, and no report had been made, and therefore recognizes the position that the failure of the administrator to report the sale to the next court will not, of itself, render the sale void. The court may compel a report at a subsequent time, and the proceeding is not final until there is a judgment of the court ratifying' or approving the sale.

The case of Hoel v. Coursey, 26 Miss. 511, involved the validity of a sale made by a guardian, under a statute containing the same provision in respect to the report. Hutch. C. 506, section 132. The sale was made on the 4th of April, 1835, and reported to the court on the 22d June, 1835, ajid confirmed in October, 1841. The court say: “ But there is a still more fatal objection to the sale. No report of it appears to have been confirmed by the Probate Court until October, 1841, more than six years after the sale had been made, and nearly a year after the death of the guardian.” The court go on to argue that, if the report had been made to the proper Term, it might have been then confirmed, without other notice; “ but it could not be held to be notice for any other Term, unless the record showed a continuance of the application; and hence the order made in October, 1841, without notice to the ward, must be treated, to say the least, as voidable, if- not absolutely void.” It was actually treated as void, for the court held that the interest of the ward did not pass by the sale so confirmed.

The case of Bland v. Muneaster, 24 Miss. 62, is a strong authority as to the effect of a confirmation to cure irregularities in the proceedings. The law required sales to be advertised at least thirty days, and the record showed that the order of sale was made on the 25th of February, and that the sale took place on the 20th of March, just twenty-three days after the date of the order. Yet the court said: “ The order of the Probate Court confirming the sale, must be treated as final and conclusive, until reversed, unless the same be vacated for fraud or other matter which would render it void.”

In Monk v. Horne, 38 Miss. 100, the court evidently treat the question as settled. The plaintiff in error attempted to object to the admissibility of proof of an administrator’s sale, on the ground that it had not been confirmed. The court assume that the objection was valid, but say that it “ cannot avail the plaintiff under the state of case presented by the record. In the first place, no objection was made to the admission of the evidence of the defendant on that ground. Tie is not to be permitted to allege here another objection against the competency of the evidence: for if this had been made in the court below, it might have been obviated by sufficient evidence.”

In the case of Smith v. Chaplain, M. S. October Term, 1861, it is said: “ Two points under the decision of this court, are clearly made out in this record against the title of appellant. 1. There was no order of confirmation of the sale by the administrator at the return Term, or next Term of the court; and no order for continuance or extension of time for report: and no report made and confirmed until after this suit was commenced.” The second point related to the appointment of a guardian ad Tótem,; and the court held'that, for these reasons, the sale was void, and the title of the purchaser invalid.

In view of these decisions, which all concur upon the point that a confirmation is necessary to give any effect and operation to a sale made under a decree of the Probate Court, it is impossible for us to regard.it as an open question.

The same rule prevails in the courts of chancery in England and in this country; and there is too close an analogy between the proceedings and practice in the chancery courts and in the probate courts, to justify the establishment, by judicial decision, of different rules in these courts, in relation to the particular subject under discussion. Sir Edwatd Sugden, in his valuable work on the Law of Vendors and Purchasers, vol. i., page 66, says: “ In sales by auction or private agreement, the contract is complete when the agreement is signed; but a different rule prevails in sales before a master; the purchaser is not considered as entitled to the benefit of his contract till the master’s report of the purchaser’s bidding is absolutely confirmed.” ITe shows also that under the English practice, it is the duty of the purchaser to procure the master’s report, and to obtain the confirmation of it, at his own expense, though, in case of his failure, the vendor may do it. And the author states some important consequences flowing from the principle that the bidder is not considered as the purchaser until the report is confirmed, to wit: that he is not liable to any loss by fire or otherwise which may happen to the estate in the interim; nor is he, until confirmation, compellable to complete his purchase — conclusions that would appear to be equally applicable to sales under a decree of the Probate Court.

Chancellor Buckner says: “ By the English practice the whole proceeding is considered in fieri until the report is confirmed, the purchase-money paid, and the conveyances executed and delivered.” And he remarks: “ The true theory of sales of this character is, that the court is itself the vendor, and the commissioner or master its mere agent for executing its will. The whole proceeding, from its incipient stage up to the final ratification of the reported sale, and the passing of the title to the vendee, and the money to the person entitled to it, is under the supervision and control of the court.” Robertson v. Hann, Freeman’s Ch. R. 265; Tooley v. Kane, S. & M. Chan. R. 518. And the general rule that the sale must be confirmed is recognized in the cases of Conger v. Robertson, 4 S. & M. 210; Tooley v. Gridley, 3 S. & M. 493; and Sanders v. McDowell, 7 S. & M. 206. Indeed, the rule is general, that wherever exceptions will lie to a master’s report, it must be regularly confirmed before any order can be made upon it. Scott v. Livesey, 2 Sim. & Stu. 300 (1 Cond. Eng. Ch. R. 301).

Giving to these considerations -their proper influence in their application to proceedings in the probate courts, we can have no difficulty in maintaining the conclusion to which the court has so often reached, that a sale of real estate, under a decree of that court, like a sale under a decree of a Court of chancery, does not operate to divest the title of the heirs or devisees, until reported and confirmed by tire court; and that, unless reported to the first Term after the sale, no valid confirmation can be decreed without previous notice to the parties whose interests are to be affected by the sale.

It is insisted that, in this case, inasmuch as there is proof that the sale was lawfully advertised and conducted in a proper manner, and as nearly eleven years had elapsed from the filing of the report, before the commencement of this suit, the court ought to presume a confirmation of the sale. We attach bxit little importance to the testimony of the two purchasers of the land, as to the regularity and fairness of the sale, nor can we undertake to say, from the evidence before us, whether the sale ought to have been confirmed. It appears- that upwards of 3,550 acres of land, now represented to be very valuable, were sold for the price of $780, not quite twenty-two cents an acre. The heirs were all infants, and no guardian ad Tótem was appointed to protect their interests. If the order of sale had been made three years later, this omission would alone, by force of the act of 1846, have made it void. As it was, the order was voidable. The record and papers in relation to the administration have none of them been lost or destroyed. No order of confirmation is found. No notice of any application for such order appears to have been given to the heirs, and the facts are all of too recent a date to justify the court in supplying the absent testimony by presumption. It may be even doubtful whether the doctrine of presumptions is at all applicable to the case. Professor Greenleaf says: “ It does not extend to records and public documents, which are supposed always to remain in the custody of the officers charged with their preservation, and which, therefore, must be proved, or their loss accounted for, and supplied by secondary evidence.” 1 Greenl. Ev. section 20, page 81. And, it is said, “ in like manner it is only where a chasm appears in a public registry, or in the rolls of a court of record, or where the books of registration or the court rolls have been destroyed, that other evidence is admitted of that which the registry or rolls, had they remained entire or in existence, would themselves have shown.” Matthews on Presumptions, 209. Lord Mansfield’s general remark, “I do not know an instance in which proof may not be supplied,” (Cowper, 102), is supposed to be true only when confined to grants from the crown, and other instruments, if any, creating original rights, which, to be effective, should appear on record. Matthews, 202.

It is insisted by the counsel for the defendant, that the evidence given on his behalf was admissible, whether the sale was valid or not, to enable him to set up the defence of the statute of limitations, founded on the fifth section of the act of 1844. Hutch. Code, 830. The record does not show that this point was raised in the court below, or that the defendant sought to avail himself of any such defence. To have reserved the advantage of this point, the defendant ought to have asked an appropriate instruction, or in some other proper form put in the record the evidence that he relied upon it. So far as we can see, the case was rested entirely upon the questions as to the validity of the sale, which were decided in favor of the defendant; and thereby any resort to the statute of limitations was made unnecessary. In the construction and application of the act several important questions may arise which we will not now anticipate. ’Whether any “sale” has in fact been made, in the absence of confirmation; whether it was made fairly and bond fide • whether proof of an adverse possession for the time limited by the statute must not be shown, and whether the statute will begin- to run until the disability of all the plaintiffs is removed, are some of these, and we do not mean at present to intimate any opinion upon them.

As the case stood before the court below, we think the evidence on the part of the defendant was insufficient to show a divestiture of the title of the plaintiffs, and that the court erred in overruling the motion for its exclusion from the jury, and that for this error the judgment ought to be reversed, and a new trial ordered.