The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-03-09
DECISIONS OF THE HIGH COURT
October Term, 1855.
/ Rperto5 c7yraaiy Jar the Eqetera C7r.oo
No. S29l.

No. s29l.
Iau,- Root .- 3D. plaintiffs % esr0r- -. William ..
n"IgIru. defendant
Writ of error to the Circuit Court Of
Marshall County.
This writ Of error Is prosecuted here
10y both parties.
The plaintiffs in error commenced their
action of cjcctment in the Circuit Court. to
recover Of the defendant the land IN con-
troycrSv, claiming title TO it a. the heirs
ut law of Aaron Root, deceased. their IA
ther. who died seized thereof. From the
record il appears that Benjamin y. An
dor-on a- his admini-irator. sold the land
in controversy. on the 9th OF October,
$50 That The purchaser took possession
under his purchase Immediately, and he,
and those claiming under him. have held
the same ever since, and that defendant
claim, title under this purchase. Tho re-
~pectivc ara, o! plaintiff appear ir the
record.
It is objected to defendants title, that
IL Is void. hccaUsc the Probate Court had
40 power TO order the sale Of the real cs-
tate Of said dccedent for the payment Of
his debts unless IN compliance with the
statute. specially conierring that power.
To support his title. defendant offered
in evidence deeds from Anderson, admin
i,tgator, and others. deducing title from
said administrator to himself. and then
offered the records of the Probate Court
Of pontotoc County, to show the authority
Of Anderson. %, administrator, to sell the
/ land. To this record, as evidence in the
cause. plaintiff, objected, because II show,
no citation executed according to the
! statute. by posting and publication, and
no notice. either actual or constructive. "a
! the persons interested in said lands to
| appear and show cause why so much OF
| the lands Of said intcstate should not hc
/ sold a. viii he sufficient to pay his debts
/ which objection was sustained by the
| Court. so far a. the said records were of
| fered A. evidence of authority in the adj
! ministrator to sell the lands of said dcce
! dent. but the same was admitted under
| the plea Of the statute of limitations. TX
| this ruling OF the Court both parties eX
! ccpted. and filed their bills of exceptions
! Along with said record defendants ais,
offered the deposition Of B. G. Earle. tend
| ing to show that while the records Of til,
Blnlata Court.af pontotoc County weri
/ nOl mutllatcd or lost, they were still no
as full. and perfect and formal. as the,
that anything actually done by the Cour
was omitted in the minutes but that h
went into the office in 1919. and found tn
papers of the office in confused condi
ton.
Defendant also offered to prove bv Fal
coner. that in 1910 "the Holly Spring
| Banner" 1.-THE paper in which the citation
referred to was ordered to be published.
was conducted and published in HOll
Springs. 10y one Foster, who had left tn
State and is now beyond its limits-tha
no file of said papers Is in existence, an
that the receipt produced and offered j
evidence from said Foster to Anderson, q
administrator of docedent. for "adverti
. ING citation" on DIST April, 1910. and 'nC
. tice to all persons" on the 10Th Jun,
A.D. $50. was in the handwriting of sal
| Foster. To all which testimony otfere
with said record, plaintiff objected, an
+ ! this objection was sustained and defenC
o ant excepted.
Defendant next introduced one Teel ;
d ! a witness. who proved that valuable in
! ! provemcnts were made on the premi~,
tv defendant worth SGo01,0o, includir
cost OF putting apple and peach orchard
ESTIMATED ut $4,000, on the land.
To this testimony. as to the cost of Il
orchard. plaintiffs objected; the ohjectiC
was ovcrruled and plaintiffs excepted.
The evidence here closed. and the plai
tiff, asked the following instructions:
If the Jury believe from the evidcn
that the plaintiffs We're all minors at ii
time the cause of action occurred tn,
= the statute of limitations did not beg
to run against any one of them uni
all were Of age. and they must find for Il
!" plaintiff,
+ Defendant objected to the charge, ~
5. in lieu thereof requested the following ::
y /. That il the Jury believe from the e.
To- dence that on the 9th day of Fcbruar
y lSll. one of the plaintiffs had attained Z
+. age of twcnty-onc years, and was not
ly that time q married woman, insane al
=. without the limits of the United Stat
,u or legally impcrsOncd. and that Il
u action was not brought until after I
y. lapse of three wears from the oath day
e February. lS44: and if they further
~ ! lieve from the testimony that the la
III sought To be- recovered in this action W
l- sold by the administrator Of plaintiff
On ther. by virtue of an order OF the Prob;
he Court of pnntotuc County, fairly and
good faith. and that the purchaser
such sale paid the purchase money the
for. and the land has been held advers
under said sale since the year 1871, a
~ that the plaintiffs claim said land as
oh heirs of Aaron Root, deceased, then ii
d" must find for defendant.
fu- > That if they believe from the ,
~ dence that any one or more Of plainti
u, were p years Of age, and not under Z
rT disability To sue as much a. five years
' fore the bringing of this suit, and that
ring that time the land sued for has b,
90 held adversely by the defendant and tn
90 under whom he claims, they must {
" for the defendant.
co All of which charges were refused
.hc the Court: but in lieu thereof the Co
s,t gave the following: the jury bell
from the evidence that any of the pl.
t., tilis were of the age of twenty-onc We
MI, at the time of the passage of the ac
iyc lSi4. and the suit was not brought wit
three years from that date or that
of said plaintiffs We're minors at the &
k. of that act and the suit was not brOu
o. within five years of their coming of a
in either case they will find for deft
ant. rs to them. But as to the other pl
- titls. if anv were under age at the dat
~ the act of Is44, and had not reached L
y. o' majority more than five years before
80 commencement of this suit. they will
81 ~ for them as if they had sued without ]
~ ing the Others"
gu To the refusal Of the Court to give
H.. charges requested, and the giving the
,,a aa 50 gwen by the Court, both parties
vi; cepted respectively.
-. The errors assigned may he clasSed
;o,' der the following heads:
| |. The Court erred in refusing To a
~ the record Of the Probate Court OF fo
~! ~, toe County to be read to the jury, as
J '''' dence of the authority of the admins
r. tor TO make sale of the land IN dlsp
and in allowing it To be read under
plea of the statute of limitations, in
nection with the administrators dee,
\, evidence Of adverse possession.
lSs >. The Court erred in the eXclusiC
the testimony of Earle and Falconer.
-"i' 3. The Court erred in permitting
testimony Of witness Tcel, in relate
5. the value of the orchards to 90 TO
jury.
utty' 1. The Court erred in refusing the
ges asked, and giving that submitte
'ded- the jury.
war. ). The Court erred, in refusing a
trial
: /. For the defendant it is insisted
-,v the exclusion of the transcript of III
- cord. offered in evidence as tendir
show legal authority in the administ
to sell the land, was erroneous: an
are earnestly urged to review the rep,
II J decisions Of this Court, on the point