The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1860-05-02

n the previous order made at July term
1874, requiring persons interested to show
cause against the decree for tho sale OF
"the lands and mills belonging to the es-
tate of Thomas Monk, deceased, recitlng
that proof Of publication had been made
according to law, and that legal notice
had been given to the heirs and all per
sons concerned" &c, and decreeing tho
- of the said mills and lands-also
memorandum and certificate showing that
! Get of mills (grist and saw situate on
he Buckatunny, and the land thereto
Loionginq." had been sold 10 John II.
Horne for S25OO,OO.
10 The admission of these records the
rlaintifF objected, on tho specific grounds.
r. that it did not appear by the same
.Lat the plaintifF had ever had any notice
of aid proceedings, and 2nd because the
Ia,d sued for was not mentioned or de-
scr;bed in said records. The objection
VAS oyerruled and exception taken.
The defendant then offered in evidence
tbo deed made by the administrator TO
him. reciting the decree Of sale-the no
| t;ca and sale to the deiendaht-the re-
nort of the sale by the administrator to
tbo Court and its confirmation by the
Court. and particularly describing the
lands sold and conveyed AS those en-
brsced in the decree of sale, which deed
was acknowledged and recorded. To the
reading of this the plaintiff objected, be
cause il did not appear from the records
| oF the Probate Court that the admInlstra-
Tor had authority to sell the lands men
| tened in the deed. The objection was
oyerruled, and exception taken. The OBJ
| factions made in both instances, to the adj
mission of the evidence offered are sub
stantially the same.
The first is, that the record offered did
not sufficiently show that the notice TO
the parties interested in the real estate OF
the decedent was published and posted
\ according to law.
1t il true that the evidence showing the
performance of those acts is not set out in
| the record. But the decree states that
proof was made of the publication accord
| ing to law, and that legal notice had been
given to the heirs. The regularity and
suficiency of this evidence were matters
which the Court had the power to deter
mine; and in the absence of evidence
| showing to the contrary, upon well settled
irprinciples, lis judgment upon the question
must be presumed 20 be right Hence il
has been held in various cases in this
Court. that such recitals in DEGREES are at
least prirna faeie evidence of due and legal
notice.-Coml Blk of Manchester VS.. Mar
tin & al, 9 5. & NJ. 6l3 Cason VS.. Cason,
| 81 Miss. SIS: Root VS.. McFaren, at Octo-
Der term, 1858.
The other objection is, that the real es-
tate is not specified in the notice to the
hers and in the decree for the sale. This
| objection appears to be based on the
ground of uncertainty in the description
of the real estate. The decree directs the
sale Of the lands and mills belonging to
| the estate of Thomas Monk, deceased
| This was general and comprehensive. and
it included all the lands and mills belong
| ing to the decedent within the iurisdic-
| ton of the Court. Ii was not necessary
| that the lands should be specifically de
! scribed in the decree, if the terms of de.
signation employed were sufficiently com.
| prehensive to embrace it, for the general
description of the land includes a part OF
them. Under the general description III
in the decree, it was competent to sell
any real estate and mills belonging to the
deceased within the County; and it j,
shown by the report of the sale and the
testimony of the defendant, that the
lands which are particularly described il
the deed of the administrator as the land
and mills sold under the decree, constitu
ted all the land owned by the decedent
in that County.
The assignments of error founded OF
these objections are, therefore, not tena
bic.
Another objection is urged here to the
| insuficiency of the evidence to establish
the title of the defendant under the adj
illustrators sale. 1t is that the recorC
does not show that the sale was confirmed
by the Probate Court. But this objection
cannot avail the plaintiff under the stat,
of case presented by the record.
In the first place no objection was mad,
to the admission of the evidence of the
defendent on this ground. The objec
tons specified to the admission of the ev
idence when il was offered, were thost
above stated; and the ground Of the mo
ton for a new trial was in substance tn,
admission of the record of the Probate
Court for want ofnotice to the plaintiff a
the party interested. He is not to b.
permitted to allege here another obiec
ton against the competency of the evi
dence; for if this had been made in tn
Court below, it might have been obviatet
by sufficient evidence. Secondly, it aT
pears that only EXTRACTS" from the re
cords of the Probate Court were offered i
evidence, and if the objection had bee
made in the Court below, the defendan
might have shown confirmation by tn
Probate Court, or an application by tina
Court Of the proceeds Of the sale to tn
purposes of the administrator. And it
, | quite probable that this was the case; fo
the deed of the administrator recites
: confirmation by the Court, and no obje,
ton to it on that ground was made by tn
J plaintiff.
Upon the record as presented the iud.
! ment is correct and must be affirmed.
II Amy