The daily Mississippi clarion. [volume] (Jackson, Miss.) 1866-1866, 1866-05-09

pen TO the estate in the interim, nor IS he
until continuation compellable to complete
his purchase; conclusions that would ap-
pear to be equally applicable to sales under
a decree of the Probate Court.
Chancellor Bueknerks says, by the En-
glish practice the whole proceeding Is con
sidered Ia feri, until the report Is confirmed,
the purchase money paid aud the conAey-
ances executed and delivered And he re
marks, The true theory of sales of this
character Is that the Court is itself the ven
dor and the commissioner or master its mere
agent for executing its Will. The whole
proceeding from its Incipient stage mp to the
first ratification of the reported sale and
the passing of the title to the vendor, and the
money to the person entitled TO il, is under
the supervision and control of the Court.
Robertson vs. Ham. Freemans CHI. K 200.
Tooley vs. Kane, ;. x NJ Chancery Rep. 5lS.
And the general rule that the sale must be
confirmed is recognized in the cases of Con
ger vs. Robertson. 4, ). u NJ, 2lU; Toolev
vs. Gridlev. 3. :. " NJ. 1913. and Sanders vs..
Mcdowell Z. S Il VI, 2J6 Indeed thu rule
is general that whenever exceptions will lie
TO a masters report it must be regularly con
tirmed before any order can be made upon it.
Scott vs.. Livesey , Sim. ~ stu. 300 Il Cond-
EngaCh. Rep. 3Ol.)
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 undeEra decree of
a Court of Chaneery does not operate to dl-
ves.Ithe title of the heirs or deviSces until rg-
ported and confirmed by the Court; aud that
unless reported TO the first term after the sale
no valid confirmation can be decreed with
out previous notice TO the parties whose III
terests are TO be affected 10y the sale
1t Is insisted that in this case. luaSmuch
there Is proof that the sale was lawfully
advertised and conducted IN a proper man
ner, and As nearly eleven years had elapsed
from the filing of the report before the COM
mencemeut OF this suit, the Court ought 10
presume a confirmation of the sale We
attach but little Importance to the testImo-
ny 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 be-
fore us whether the sale ought TO have been
confirmed. 1t appears that upwards OF
thirt. me hundred arid fifty acres of land
now represented to be very valuable, were
sold for the price of seven hundred and
eighty dollars, not quite TWENTY-FIVE cents
an acre. The heirs were all infants, and no
guardian dd titen' 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 1876
have made it void. As il was the order was
voidable. The records and papers in rela-
ton to the administration have none of
them been lost or destroyed No order of
confirmation is found No notice of any
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 pre-
sumption 1t may be even doubtful whoth-
er the doctrine of Prescriptions Is at all
applicable to the case. Professor GTeculeat
says, lit does not extend TO records and pub
lie 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 ac-
counted for and supplied by secondary eN-
idence." / Greenleat Ely. 20, p. 81. And.
it Is said in like manner. it is only where
a ChaSm appears IN "A public registry, or i'm
the rolls of a court of record. or where the
books ofregistration or the court rolls have
been destroyed, that other evidence is adj
mitted of that which the registry or rolls,
had they remained entire or i'm existence
would themselves have shown" Matthews
IN Prescriptions 2u9. Lord MaBsGelds re-
mark, Il do not know ana instance in which
proof may not be supplied lCowper 1922 /
5 supposed to be true only when confined to /
grants from the crown and other instru- |
nentS, if any, creating original rights, /
o be effective should appear on record |
POP.
1t is insisted 10y the counsel for the de
endant, that the evidence given on his be-
lalfw admissible, whether the sale was
aid OF not to enable him to set up ihc de
ence ofthe statute of limitations, founded
n the fifth section of the act of I-it. Hutch
ode $50
The record does not show that this point
vas raised in the Court below, or thar the
sought to avail himself of any
uch defence. To have reserved the adyan-
age Otthis point, the defendant ought 10
ave askedan appropriate instruction or in
)me other proper form, put i'm the record
he evidence that he relied upon it, 80 far
5 we can see. the ease was rested entirely
pom the questions as to the validity of the
ale, which were decided in favor Of the
and thereby any resort 4
the statute of limitation. was made y
Unnecessary. An the construction and APP y
LEGATION OF the act, several important puesEI
Ons may arise which we viii not now AMI |
cipate Whether any sale has in fa1t |
zen made, IN the absence of confirmation:
neither it was made fairly and bona F1e.
neither proof of an adverse possession for
e time limited by the statute must not
shown, and whether the statute viii he
II to run until the disability of all the
aiutitfs Is removed, are some of these. and l
e do not mean at present To intimate any
1iniOp upon them. y
As the ease stood before the Court below, J
e think the evidence on the part OF the
PENDANTS was insufficient to show a dives
ture of the title of the plaintiffs, and that
e Court erred i'm overriding the motion
its exclusion from the jury and shat for
is error the Judgment ought to be reversed
d new trial ordered.