Summary
Appeal from the Circuit Court of Mobile.
Tried before the Hon. C. W. RapieR.
BjectmeNT by Seneca Saltonstall and Louisa, his wife, against James Riley and Wm. A. Dawson, for the recovery of certain lots in the city of Mobile, which are described in the declaration as, “All the south-east section of square No. 2*7, as marked on the plot of survey, beginning at the north-west intersection of Franklin and Dauphin streets, thence running along the north side of said Dauphin street 220 feet to the north-east intersection of Dauphin and Hamilton streets, and extending back northwardly 160 feet, and bounded on the east by Franklin-street, on the south by Dauphin street, on the west by Hamilton street, and on the north by lands now or lately of Joshua Kennedy.” The situation of the land is more particularly shown in the annexed diagram:
The defendants entered into the usual consent rule, and pleaded not guilty; Riley admitting himself to be in possession of “ that portion of the premises sued for lying on the north-east corner of Dauphin and Hamilton streets, having a front on north side of Dauphin street of-feet, and running back 160 feet, and bounded on the east by the lot in the possession of said Wm. A. Dawson; and Dawson admitting his possession of “ that portion of the premises sued for lying at the north-west corner of Franklin and Dauphin streets, having a front of 116 feet on the north side of Dauphin street, and running back 160 feet.”
The bill of exceptions, sealed on the trial, is as follows :
“ The plaintiffs claimed title to the lands sued for as heirs-at-law of Alvan Robeshaw, deceased. It was admitted by the defendants that Mrs. Saltonstall, one of the lessors of the plaintiff, is the only heir-at-law of her father, said Alvan Robeshaw, deceased, and of her brother, who died a minor and childless; that said Alvan Robeshaw died in 1819 or 1820, and was at the time of his death in the seizin and pos - session of the lands now sued for; that his said son (and only other child) died a few years afterwards, without children; that said Louisa did not attain her majority until July, 1884; and that said Seneca Saltonstall is now, and was at the time the suit was brought, her lawful husband. It was admitted by both parties that the land sued for is in the city .of Mobile, and is bounded on the east by Franklin street, on the south by Dauphin street, and on the west by Hamilton street, and that it consisted of six lots; that Claiborne street is now, and was in 1824, the street next east of Franklin street, that there were six lots of land intervening between Claiborne and Franklin streets, and that Claiborne was the most eastern street, and nearest the heart of the city; that the annual rent of the lots sued for, for six years last past, was $75 each; and that the value of the improvements claimed by the defendants was $12,000.
“ The defendants claimed title to the premises under a sale made by the county or orphans' court of Mobile in 1824; and, to sustain their title, produced a certified transcript of the entire record of the proceedings in said court in relation to the administration of said Alvan Robeshaw’s estate”; which transcript is made a part of the bill of exceptions, and shows the following facts:
The first entry, dated February 8, 1820, is the grant of letters of administration to Mrs. Catherine Robeshaw, and the appointment of three appraisers. On the 9th March, 1820, as the next entry shows, the sureties on the official bond of the administratrix were changed. On the 5th June, 1820, an order of sale of the personal estate was granted to the administratrix, “she producing an inventory and ap-praisement before the day of sale”; and an inventory and appraisement, together with an account of sales, next appear in the record. On the fourth Monday in February, 1822, Mrs. Robeshaw filed her resignation as administratrix; and letters of administration were thereupon granted to Daniel Duval, then sheriff of Mobile county. In July, 1824, letters of administration were granted to Robert Carr Lane, and the court accepted his bond on the same day.
Two petitions next appear in the record, each signed by the administrator, and one marked, “ Filed July 21, 1824”; alleging that the personal estate of said Robeshaw is insufficient to pay his debts, and therefore praying an order to sell certain lots, which are thus described : in one, “ three lots of ground, lying on Dauphin street, and bounded south by Dauphin street, east by Franklin street, north by the lands of John Moore and Samuel Farnsworth, and west by those of Robert Carr Lane and Hamilton street”; and in the other, “ three lots of ground, lying in the city of Mobile, bounded by Dauphin street on the south, on the east by Claiborne street, north by the lands of John Moore and Thomas Richardson, jr., and west by the lands of Robert Carr Lane; also, all the right, title, interest and claim which said Abram Robeshaw had in or to three other lots adjoining the above on the west, and claimed by Robert Carr Lane.” Each of these petitions states there are two minor heirs, whose names and ages are given, that Catherine Robeshaw has been appointed their guardian, and that they all reside in Mobile county.
The next entry, dated July,T 824, is an order that citation issue to the heirs of said Robeshaw, to appear on the third Saturday in August next thereafter, and answer the petition of said administrator for the sale of real estate; and that Lewis Judson bo appointed, guardian ad litem of the minor heirs. On the 18th September, 1824, citations were ordered to issue to said Judson, and to the minor heirs themselves, to appear on the third Saturday in October next and answer, the administrator’s petition for -the sale of the real estate; and these citations were issued on 22d September, and executed on the 15th October, the day appointed for the hearing of the petition. On the 24th August, 1824, letters of guardianship over the persons and property of the two minor heirs.were granted to Mrs. Catherine Robeshaw. On the hearing of the administrator’s petition, on the third Saturday in October, 1824, “ satisfactory evidence being adduced to show that the prayer of the petition ought to be granted,” the court granted an order of sale “ of the following described property, as set forth and specified in said petition— to-wit, three lots of ground, lying in the city of Mobile, and bounded south by Dauphin street, east by Claiborne street, north by the lands of John Moore and Samuel (Farnsworth), and west by three lots possessed by Robert Carr Lane; also, the three lots adjoining the above on the west, and bounded south by Dauphin street, west by Hamilton street, and north by the lands of George Getz and said Farnsworth; each lot being 55 feet front, and running back 110 feet.” The order appointed Joseph Krebs and Diego McYoy as commissioners to make the sale, directed them to give thirty days notice of the sale in some newspaper published in Mobile, and to make report of their proceedings to the court on the third Saturday of December then next.
The commissioners reported on the 21st December, 1824, that they had sold the lands, “ on the premises,” on the 19th November, after having given thirty days notice of the time and place of sale by advertisement in the “ Mobile Commercial Register”,-and that James P. Bates became the purchaser “ of the three lots bounded south by Dauphin street, west by Hamilton street, north by the lands of George Getz and ¡Samuel Farnsworth, and east by other three lots of said Abram Robeshaw; and also of the other three dots adjoining the above on the east, and bounded south by Dauphin street, east by Claiborne street, west by the aforementioned three lots, and north by the lands of said Farnsworth .and Moore.” This report, as the minute entry shows, “ was approved and ordered to be recorded, which is accordingly done; and it appearing to the satisfaction of the court that the terms of sale have been complied with by said James P. Bates, it is ordered, adjudged, and decreed by the court, that said commissioners convey to said Bates all the right, title and interest which was in said Bobeshaw,.in and to the above-described premises.”
The defendants then offered in evidence the deed made by said commissioners, under the order of the court, to said Bates, in which the land is described as “ all that tract of land (or three lots) situate in the city of Mobile, and bounded as follows: west by Hamilton street, south by Dauphin street, east by three other lots belonging to the estate of said A. Eobeshaw, deceased, and north by the lands of George Getz and Samuel Farnsworth, containing 110 feet front on Dauphin street, and running back 165 feet; also, another tract of land (or three lots), adjoining the above last-mentioned lots on the east, containing 110 feet front on Dauphin street, and running back 165 feet, and bounded west by the three lots above described, south by Dauphin street, east by Franklin street, and north by the lands of John Moore and Samuel Farns-worth.” The plaintiffs objected to the introdution of this deed as evidence, “ because it was a deed of different property than that described in the order of sale, in the report of the commissioners to the court, and in the confirmation of the sale by the court.” The court overruled the objection, and the plaintiffs excepted.
“ The defendants also offered to prove by Joseph Krebs, one of the said commissioners, that the sale of the lots made by them under the order of the court, was made upon the lots sued for in this action, as the premises intended to be sold. To this evidence, so far as it was intended to vary the effect of the said proceedings and sale as contained in the transcript, and to identify the lots sued for as the lots to which the purchaser at said sale thereby acquired title, the plaintiffs objected, on the ground that it was parol evidence, and therefore inadmissible; but the court overruled the objection, and the plaintiffs thereupon excepted.”
“ The defendants also offered to prove by a witness that Daniel Duval, former sheriff of Mobile county, whose name is mentioned in'said transcript, died in May, 1824. The plaintiffs objected to the admission of this parol testimony, and insisted that his death, or the vacancy of the office of administrator of said Robeshaw’s estate by any other means, should appear by the record of said orphans’ court, or the loss of the record be shown; but the court overruled the objection, and plaintiffs thereupon excepted.”
“ The plaintiffs admitted that the defendants had possession, and that they held a regular chain of title from the purchaser at said sale. There was testimony, also, tending to show that the land sued for was contained in the boundaries described in one of the petitions, in the order of sale, and in the report of the commissioners. The plaintiffs then read to the jury, without objection by the defendants, the notice of said sale given by said commissioners, published in the ‘ Commercial Register,’ a newspaper published in the. city of Mobile.” This notice, which is made a part of the bill of exception's, was first published on the 19th October, 1824, and described the land as follows : Three lots of ground, lying in the city of Mobile, bounded south by Dauphin street, east by Claiborne street, north by the lands of John Moore; also, all the right, title and interest of A. Robertson, deceased, to three other lots, adjoining the above, and bounded west by Hamilton street, south by Dauphin street, north by the lands of G-eorge Getz, and east by the aforementioned three lots, each containing 55 feet front, and running back 110 feet.” In the second publication of the notice, which was on the 26th October, the name was corrected.
“ This was all the evidence in the cause; and upon this evidence the court charged the jury, among other things, as follows:
“1. That the proceedings of the orphans’ court were irregular, and some of them erroneous, so as to authorize a reversal in an appellate court; still these irregularities were not such as to render the proceedings void, and, consequently, not such as to avail the plaintiffs in this suit.
“ 2. That, so far as this case was .concerned, all that was necessary to be seen was that the record showed that the orphans’ court had jurisdiction of the cause, had taken jurisdiction and directed a sale, and had affirmed the action of the commissioners; and that if these things appeared by the transcript of the record in evidence, and the land claimed by the defendants was within the boundaries of the land described in the order of sale and the report of the commissioners, and was a portion thereof, and had been conveyed by the commissioners with the approval of the court, then the title of the heirs had been divested, and they must find for the defendants.
“ 3. That the orphans’ court had jurisdiction to make the order of sale, and its decree therein was valid, and could not be impeached in this action.
“ 4. That if they believed that the property sued for was described in either of the petitions, and that it was the premises which were actually sold and described in the commissioners’ deed to Bates, they must find for the defendants.
“ 5. That they might look to said deed, and to the testimony of Krebs, to determine what land was purchased by Bates.
“ The plaintiffs excepted to each one of these charges as erroneous, and to the 4th, also, because it referred the construction of the record to the jury; and they then asked the court to give the following charges:
“ 1. That if the jury believe from the record evidence that Duval, as sheriff of Mobile county, had been appointed by an order of the orphans’ court administrator on the estate of said Alvan Robeshaw, deceased, then, unless it appears from the record of the proceedings of said court that said Duval resigned said administration, or that his term of office had expired, or that he had died or had been removed, before the appointment of said Lane as administrator, the appointment of the latter was unauthorized, and all the proceedings of said court in reference to the sale of the real estate of said Robe-shaw were void, and the sale did not divest the title out of the heirs of said Robeshaw.
“ 2. It having been admitted by the defendants that Louisa Saltonstall is the daughter and sole heir-at-law of said Alvan Robeshaw, and that she was a minor under the age of twenty-one years at the time of the filing of said Lane’s petitions, and at the time of the sale, then, unless it is shown by the record that citation was issued to her at least forty days before the time fixed for hearing said petition, the action of the court upon said petition was unauthorized and void, and passed no title to the purchaser.
3. “ If the jury believe from the evidence that, after the filing of the petition by the administrator, the court appointed Judson guardian ad litem of the minor heirs of said Robe-shaw, and directed citation to issue to him; yet the court was not authorized to proceed to order the sale, unless it has been shown that said Judson accepted the guardianship, or acted as such guardian.
“4. It was the duty of the guardian to have denied the allegations of the petition; and if the court acted in the premises, and ordered'the land to be sold, without such denial being made, then the sale was void, and passed no title as against the heirs of said Robeshaw.
5. “ The county court had no power to make the order of sale, without proof taken by deposition showing the necessity of the sale; and unless it has been shown that proof was taken by deposition, the order of sale and the sale were void, and no title passed to the purchaser as against the heirs of said Robeshaw.
“ 6. Unless it has been shown in evidence that, before the sale of the land, forty days notice of the time and place of sale was given,by putting up advertisements at three or more public places in the county, and by publishing notice of the sale in some public newspaper in the State, for three successive weeks before the day of sale, then said sale was void as against the heirs of said Robeshaw and those claiming under them.
“1. Unless the land was so particularly'described in the petition on which the court acted that it could be located and identified without oral proof, the court had no jurisdiction, and the sale did not divest the title out of the heirs of said Robeshaw.
“ 8. That the commissioners appointed by the court had no authority to sell any other land than that described in the decree of the court ordering the sale; and unless it appears by the decree of the court that the lands sued for in this action are the lands described in said decree, then the title of Robe-shaw’s heirs to the land sued for was not divested by the sale, and the plaintiffs must recover.
“ 9. It having been admitted by the parties that Claiborne street is east of Franklin street, and that Hamilton street is west of Franklin, and that there were sis lots intervening between Claiborne and Franklin streets, and six lots between Franklin and Hamilton streets, and that Robeshaw’s lots were bounded on the oast by Franklin street, — then, if it appear that, by the decree of said court, a sale was ordered of lots described as being bounded east by Claiborne street, that sale did not divest the title out of the heirs of Robeshaw to the land sued for in this action, and plaintiffs must recover.
“ 10. No title could pass by the sale without a confirmation of the sale by the court, and the confirmation must be based upon the report of the commissioners; and unless that report, as contained in the said transcript, shows that the property here sued for was the property described in the report, the plaintiffs must recover.
“ 11. If the court acted upon the petition of the administrator contained in the record, and endorsed. 1 Filed July 21, 1824/ and that petition called for the sale of only three lots on the corner of Dauphin and Franklin streets, then the court had no power to order the sale of any other lots, nor had the commissioners the right to sell the three other lots on the west of those described in the petition, and to these three no title passed by the sale, and the plaintiffs are entitled to recover them.
“ 12. If the petition upon which the court acted described the lots as cornering on Claiborne and Dauphin streets, then that must be the starting-point for ascertaining the lots which the commissioners were authorized to sell; and if they sold the three lots cornering on Franklin and Dauphin streets, the sale of the latter was void, and passed no title to the purchaser.
“ 13. If the jury believe the evidence, they must find in favor of the plaintiffs, for the three lots on Dauphin street immediately west of Franklin, and on the corner of Dauphin and Franklin.”
The court refused each one of these charges, except the 8th, “ which was given with the qualifications contained in its previous charges; and to each refusal, as well as to the qualification given, the plaintiffs excepted.”
The errors now assigned embrace the rulings of the court on the evidence, the charges given, and the refusals to give the charges ashed.
As preliminary to an examination of the points presented by the record, we lay down the following general propositions : 1. — rThat the orphans’ court is a creature of the statute; that its duties are defined, and its powers declared, by the law of its creation. 2. — That the power given to that court to order a sale of real estate belonging to an intestate, is in the nature of a special power, and, like all special powers, must be strictly pursued; and that this must be shown by the record. — 1 Sm. k Mar. Oh. 561; .6 Wheat. 119; 2 Peters, 492; 10 ib. 161; 4 Wend. 436; 7 Mass. 488; 3 Barb. 341; 1 How. (Miss.) 558; 14 Ala. 347. 3. — That the record must affirmatively show that every thing necessary to give the court jurisdiction was performed, or the sale will be void. — 6 Ala. 112; 6 Port. 244; 6 Sm. k Mar. 259; 7 ib. 449. 4.— That no recitals in the record can give the court jurisdiction. 15 Wend. 449; 7 Oowen, 89; 7 Sm. k Mar. 449. 5. — That jurisdiction cannot be presumed. — 3 Barb. 341; 12 Ohio, 253; 1 Blackf. 182. 6. — That when claim of title is founded on an administrator’s deed, it must be shown not only that a license to sell was given, but that all the requisitions of the statute were complied with. — 4 Geo. Rep. 148. 7. — That the statutory requirements, when to be performed before the sale must be complied with.- — 6 Port. 245; 16 Ala. 233; 7 ib. 268-73. 8. — That the want of jurisdiction may always be set up against a judgment. — 2 Comstock, 459; 15 Johns. 141; 19 ib. 33; 2 McLean, 479; 1 Dev. Law R. 259; 11 How. 437; 9 Cowen, 229; 11 Wend. 652.
1. Duval, as sheriff, was appointed administrator; and the record does not show that he ever resigned', or died, or that his letters were revoked before Lane was appointed. It will be intended that the transcript is complete and embraces all the entries, orders, &c. — 9 Ala. 794. The appointment of Lane, under the circumstances, was a nullity. — 1 Cushm. (Miss.) 550; 1 How. (Miss.) 440. The renunciation of an executor must be shown by the record, and not by acts in pais. 5 English, 169; 1 How. (Miss.) 440.
2. The record does not show that the guardian ad litem was actually appointed, or that he accepted the trust, or that he answered for the infant heirs; and the petition shows that Catherine Robeshaw was their real guardian. — 6 Ala. 607; 16 ib. 698; 2 Comstock, 459; 1 Hill’s (N. Y.) R. 130; 3 ' Barb. 341.
3. The court was not authorized to divide the guardianship of the minors, and to commit their property to one and their persons to another. The appointment of Judson was therefore erroneous. — 1 Green’s (N. J.) R. 80.
4. The statute (Olay’s Digest, 224, § 17) required at least forty days notice to the minors, while only twenty-seven days elapsed from the issue of citation until the hearing. The citation was served on them on the same day the decree was rendered, and on their guardian ad litem the day previous. Short notice is no notice at all. — 6 Port. 245; 11 Ala. 120; 3 Barb. 341; 7 ib. 39-45; 1 How. (Miss.) 444. Since a minor cannot assent to a waiver of notice, no decree can be rendered without the statutory notice. — 4 Ala. 248; 7 Sm. & Mar. 459; 1 ib. 351; 8 Blackf. 542; 12 Missouri, 63; 7 Barb. 45. Even if this be a judgment in rem, it is essential that constructive notice, at least, should appear to have been given; as actual notice must be in a proceeding 'in personam. — 20 Vermont, 65; 1 How. (Miss.) 440. The court must have jurisdiction of the persons of the minors, or the sale will be - void. — 2 Comstock, 459; 12 Ohio, 268-74; 1 Hill’s (N. Y.) R. 139.
5. There was no proof by deposition; and the recital in the record, “satisfactory evidence being adduced,” &c., is not sufficient. — 9 Ala. 793; 16 ib. 238; 12 ib. 268-73; 4 ib. 248; 2 ib. 662; 11 Humph. 488; 7 Sm. & Mar. 449.
6. Had the court power to decree a sale to pay debts, without other evidence than the oath of the administrator or creditor that there were debts? — 10 Paige, 366; 1 Munf. 489. The legal necessity for the sale must appear in the order of the court directing it. — 9 Ala. 290; 12 ib. 268; 2 ib. 662; 15 ib. 768.
7. There was not sufficient notice of the sale. — 6 Port. 245; 7-Ala. 864; 16 ib. 233. The record must show that legal notice was given. — 1 Sm. & Mar. 351; 7 ib. 449; 7 Barb.,45; 3 Denio, 249; 20 Wend. 249; 4 Geo. R. 148; 6 Port. 245; 11 Ala. 118-20.
8. The land sued for is not the land described in the petition,'in the order of sale, or in the report of the sale.’ Parol evidence is not admissible to change the description contained in them. — 70 En. Com. LawR. 260; 6 N. H. 205; 5 Hill, 272; 5 Ired. Eq. 373; 3 Ala. 623; 14 ib. 347; 13 ib. 38; 15 ib. 768; Phil. Ev. (0. & H. Notes), 571. Streets, being the most durable monuments, must govern description. — 9 Iredell, 58.
9. As to the charges given and refused by the court:
The first charge given is erroneous, because, 1st, the record shows that an administrator had been appointed previous to the appointment of Lane, and there is nothing in it showing that the office had been vacated when Lane was appointed; 2dly, it does not appear upon which petition the court acted; 3dly, the notice by law required was not given to the minor children; 4thly, the appointment of Judson as guardian ad litem was unauthorized; 5thly, no notice was given to the guardian, as required by law; 6thly, the record does not show that the guardian appeared and answered; 7thly, the commissioners did not give notice of the sale' as required by law; 8thly, the notice first published by them described the property as belonging to A. Robertson, and the correct notice afterwards given was not published a sufficient time before the sale; 9thly, a portion of the land was described in the notice as being bounded on the east by Claiborne (instead of Franklin) street; lOthly, the order of sale misdescribed the lots; llthly, the commissioners, as shown by their report, did not conform to the terms of the decree, as to the form of security to be taken by them; and, 12thly, the record does not show any evidence of the necessity for the sale. The same reasons show that the third charge given was erroneous.
The second charge given was erroneous, because it referred the construction of the record to the jury, when it was the duty of the court to determine whether the record showed that the orphans’ court had jurisdiction. — 3 Ala. 237; 5 Port. 64; 2 Stew. & P. 193; Spivey v. The State, 26 Ala. 90.
The fourth charge was erroneous, because the orphans’ court could not act upon two petitions which were inconsistent with each other, and the transcript should have disclosed upon which petition it acted.
The fifth charge was erroneous, because it was improper to refer to oral testimony to ascertain the identity of the land.
That the first charge asked should have been given, see 1 How. (Miss.) 440: 1 Oushm. (Miss.) 550; 5 English, 169.
That the second charge asked should have been given, see 6 Pork 245; 11 Ala. 120; 3 Barb. 341; 7 ib. 45.
That the third and fourth charges should have been given, see 6 Ala. 607; 16 ib. 693; 3 Barb. 341; 2 Corns. 459.
As to the fifth charge asked, see 10 Paige, 366; 1 Munf. 489; 11 Humph. 488; 9 Ala. 793; 12 ib. 268; 15 ib. 768; 16 ib. 238; 4 ib. 248; 2 ib. 662.
As to the sixth charge asked, see 6 Port. 245; 7 Ala. 764; 16 ib. 233; 20 Wend. 249; 7 Barb. 45; 1 Sm. & Mar. 351; 7 ib.- 454; 4 Geo. 118.
As to the seventh charge, see 70 E. C. L. E,. 260; 6 N. H. 205; 5 Hill, 272; 5 Ired. Eq. 373; 13 Ala. 38; 15 ib. 768.
That the eighth charge should have been given, without any qualification, see 4 Ala. 116; 11 ib. 535, 1059; 13 ib. 222, 537; 16 ib. 720.
Each of the’ other charges asked asserted a correct legal proposition, and was authorized by the evidence; they should, therefore, have been given.
contended,—
1. That each of the petitions, which were received and acted on by the court, alleged the existence of the fact necessary to give the court jurisdiction — viz., that the personal estate was not sufficient for the payment of the debts; and the jurisdiction of the court, therefore, fully attached. — Light-foot v. Heirs of Lewis, 1 Ala. 475; Duval’s Heirs v. P. & M. Bank, 10 ib. 636, 652. All reasonable' intendments will be made to support that jurisdiction. — 6 Porter, 219, 262; 1 Ala. 475, 733; 15 ib. 761; 16 «6.-652.
2. These jurisdictional facts appearing of record, irregularities and errors in the proceedings will not be regarded in this suit, which is collateral merely .~6 Porter, 219, 262; 1 Ala. TIO, 730; 6 ib. 324; 10 ib. 652; 2 How. (U. S.) R. 319; 12 ib. 385.
3. The transcript from the orphans’ court shows all that was necessary for a purchaser to look to — viz., that the case was within the jurisdiction of the court; that the court took actual jurisdiction, and made an order of sale; and that the acts of the commissioners were approved by the court.
4. The main charge given by the court correctly declares the law of the case; and the charges asked by the plaintiffs, which are based upon mere irregularities in the action of the orphans’ court, were rightfully refused. The alleged irregularities, except those which refer to the description of the land, raise the question whether the action of the court can be collaterally impeached, — a question which involves the validity of titles to a considerable portion of the lands in this State, and which is settled by the uniform decisions of this court since the case of Wyman v. Campbell, 6 -Porter, 246, which overruled the doctrine asserted in 2 Stew. 331, and 3 Stew. & P. 355. — Lightfoot v. Doe d. Lewis, 1 Ala. 475; Duval v. McLoskey, ib. 730; same case, 10 ib. 652; Price v. Wilkinson, 10 ib. 172; Bonner v. Greenlee, 6 ib. 411; Perkins v. Perkins, 7 ib. 855; Cox. v. Davis, 17 -¿6.-714. The objections specified in the 2d, 3d, 4th, 5th and 6th charges asked by the plaintiffs, are specifically overruled in these cases. The same principles have been repeatedly affirmed by other tribunals. — 2 How. (U. S.) R. 318; 12 ib. 385; 2 Peters, 169; 11 Mass. 227; 11 Serg. & R. 427.
5. The other charges asked refer to the description of the land, and seek to establish as a fatal error the substitution, in some of the proceedings, of Claiborne instead of Franklin street as the eastern boundary. In 1824, Mobile was a small village; and its streets, probably, were mere roads, without any well-known names. Claiborne street is now the ninth street from the river. It will be observed that the land sold consisted of two tracts, each containing three lots, which are uniformly described as adjoining each other; the western boundary of the whole always being. Hamilton street. The distances given always correspond, and show that the land claimed by the defendants under their purchase is the land that was intended; and the commissioners’ deed, with the continuous possession under it, clearly establishes the fact. There is no point which must be assumed absolutely as the place of beginning; but, if any point is to have precedence, it must be Hamilton and Dauphin streets, which are mentioned in all the descriptions; and beginning at that point, there is no difficulty in arriving at the result. It is not a case for the application of the rule that natural or permanent monuments control course and distance; it is a question of identity. But, if streets are to govern course and distance, the proceedings authorized a sale of lands from Claiborne to Hamilton street; and the heir cannot complain that a less quantity was conveyed to the purchaser. Besides, the lands claimed by the defendants are confessedly within these limits, and the other portion of the tract may have been conveyed by Bates to some other person.
6. The deed from the commissioners to Bates was part of the defendants’ chain of title, and, therefore, properly admitted in evidence.
7. The testimony of Krebs was competent on the question of identity. In questions of boundary parol evidence is admissible.
8. JjTo evidence of the death of Duval was necessary; the order appointing Lane would not be vitiated by the absence of all proof of Duval’s death or resignation. Besides, parol evidence was the best proof of the fact.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
