Drake v. Kinsell

• Decision Date: 22 January 1878
• Citation: 38 Mich. 232
• Court: Michigan Supreme Court
• Parties: Ada Drake v. George W. Kinsell

38 Mich. 232

Ada Drake v. George W. Kinsell

Supreme Court of Michigan

January 22, 1878

Submitted January 17, 1878

Error to Eaton.

Ejectment. Plaintiff brings error. The facts are stated.

Judgment affirmed with costs.

Melville McGee for plaintiff in error.

M. V & R. A. Montgomery and H. F. Pennington for defendant in error. A homestead claim must be made by one who has the right (Herschfeldt v. George, 6 Mich. 468), and the right may be waived, Chamberlain v. Lyell, 3 Mich. 448.

OPINION

Cooley J.

The questions involved in this case relate to the validity of proceedings taken for the sale of lands belonging to the estate of Horace Fuller for the satisfaction of claims against the estate. The plaintiff is one of the heirs at law of Horace Fuller, and has purchased and received conveyances from the other heirs. The defendant claims the lands as grantee of the purchaser at administrator's sale. Several defects are pointed out in the administrator's proceedings, and it is claimed that the evidence introduced to prove the sale and the steps leading to it was incompetent.

The lands sold were situated in the county of Eaton, and the administration proceedings were had in that county and began in 1854. The record book of orders made by the court for the period covered by the administration, was not found. Ezra D. Burr was at that time judge of probate, and he produced a minute book of short entries made by him of the following proceedings taken in relation to that estate:

Jan. 3, 1854. Petition for appointment of administrator, and order for hearing February 7, 1854. On the day last named hearing had and J. Gallery appointed administrator. Appraisers and commissioners also appointed. March 7, 1854, administrator returns inventory. Petition for license to sell real estate. Hearing ordered May 2, 1854, at 10 A. M. May 2, 1854, hearing had and administrator licensed to sell real estate. October 21, 1854, administrator's report of sale of real estate confirmed. Hearing for final settlement ordered Nov. 6, at 10 A. M. Nov. 6, 1854, hearing continued to Dec. 1, 1854. Jan. 2, 1855, administrator presents final report, and settled with.

Judge Burr was examined as a witness in the case and testified that all these proceedings took place and the orders were entered. There was also other evidence that the usual letters of administration were issued to Mr. Gallery, and that they were destroyed by fire. The original petition for license to sell was produced, and appears to have been in due form. It showed the existence of debts to the amount of $ 300, and estimated the charges of administration at $ 50. The personal property was stated to be $ 75.25, and the administrator prayed leave to sell the lands, valued at $ 750, to enable him to pay the debts and charges. A printed copy of the order for hearing on this petition, with proof of publication of the same, was produced in evidence, and also a printed notice of the sale with like proof of publication. It was also shown that the administrator took the oath required by the statute to be taken by him before making the sale. Comp. L., § 4566.

The evidence of Judge Burr and all other parol evidence was objected to. It was truly said that the probate court is a court of record, and it was insisted that proof of its proceedings must be made by record and not otherwise. If by this is meant that parol evidence is not to be given of the contents of a lost record, the position is so plainly untenable as to merit no attention. A rule of law that should make every man's rights depend upon the preservation of records in their integrity, would be intolerable, because it would not only render losses by casualty irretrievable in many cases, but it would leave him at the mercy of any one interested in destroying the records, and sufficiently bold and reckless to make way with them. Such a state of the law would be a direct invitation to unscrupulous men to tamper with the public records.

But it is said, if parol evidence is receivable at the common law the statute which provides for restoring lost files and records dispenses with the necessity of resorting to it, except for the purposes of that proceeding; and that the record must first be restored, and then proved by itself. It is true that the statute (Comp. L., §§ 6055-6059) makes full provisions for restoring lost records and files, and it is very proper to resort to it where the case is such that the benefit of its proceedings can be had. But we do not understand that this statute is imperative, and that it now...