#### NEWCOMB’S LESSEE *v.*SMITH.

Husband and wife — deed—certificate of acknowledgment — order óf sale — record and journal entries — presumptions.

Where husband and wife unite in a deed to convey her estate, the deed, though defective to convey her.interest, is good against him to convey his right by the courtesy or otherwise.

A certificate of an acknowledgment of a deed by a wife, which states that it was acknowledged according to the act, &c. is good ; the matter not expressed may be fairly inferrible from what is expressed.

An order of sale is essential to a title under an administrator’s deed; it should be made *by the*court, and evidenced by record or the journals. A petition to sell, with *allowed*written upon it by an associate judge, is no such order of sale.

If the minutes show no order, the court cannot *presume*one to have been made and lost.

>Ejectment. The plaintiff traces his title to J.C.Symmes. One of the deeds offered was from Woodward and wife, of the interest *209of the wife. She has since died, leaving issue and her husband; there was no certificate of the separate examination of the wife, at the acknowledgment of the deed.

Storer, for the defendant,

objected that there is no examination of the wife, or proof that she was *acquainted with the contents of the*deed, &c.

*Hammond*and *N. Wright,*

objected to the evidence; the order of sale can only be proven by the record; 5 *O. R.*450.

*Storer*and *Fox,*contra,

insisted that the *record,*or *minute,*which was the only record in such cases kept at that time, might be *presumed*as a deduction from the facts proven. They cited 1 *Cowp.*108; 3 *T. R.*159; 1 *O. R.*268.

Wright, J.

The deed may be read; the certificate is, that the acknowledgment was made *agreeably to the act in such cases made and provided.*The case of *Brown*v. *Farr*an, 3 *O. R.*152, is in point. If the matter not expressed in words is fairly inferrible from what is expressed, that will do. In this case, the woi'ds *agreeably to the*act, would seem to include all that the law required. But, be that as it may, the deed in this case is admissible; the grantor has a life estate by the courtesy, and during his life, a possessory title under him may be derived from the grant; it is good, as against him.

The defendant, in order to show title out of the plaintiff introduced an original petition of an administrator to sell land, with the word ‘allowed,’written on the back by an associate judge. He also offered an order of sale, in the handwriting of a deputy clerk; and a book of minutes made up of *quire boohs,*and loose pieces of paper, collected and bound several years ago by the present clerk of the Court of Common Pleas of Hamilton county, as the journal of that court. On this book there was no entry of the order of sale, though there were several entries on it the day the *order*was alleged to have been made, but no minute of an adjournment on that day.

Wright, J.

This Court has already decided that the order to sell the estate of an intestate, must be made by *the court.*The acts of the court are, in general, only evidenced by its minutes and records. In this case, the papers offered are neither *record*nor *minutes,*but a memorandum on a piece of paper. The acts of our courts were never legally evidenced in such a way. If a record existed, and had been destroyed, and that fact was proven, lesser evidence might be let in; but that is not this case; 4 *O. R.*129; 5 *O. R.*447. As to *presumptions,*they never obtain *against facts,*though they are often allowed to supply proof of facts. You prove *210that there was neither record nor minute kept in this case; you produce the only book where either can be found, if it exist; it is not found there, and yet ask the Court, against the fact so proven, to presume that a record was made, and does exist. The conclusion is at war with the premises. The testimony is inadmissible.

Verdict for the defendant. *See 5 O. R. 447.*