APPEAL
from the district court for Gage county. Heard below before
APPELGET, J.
Judgment of the district court reversed and action dismissed.
T. F
Burke, for appellant: Lost records may be proved by parol. (1
Greenleaf, Ev., sec. 509, and note to sec. 84; Jackson v
Cullum, 2 Blackf. [Ind.], 228; Schwartz v
Osthmer, 4 Ind. 109; Burnett v. McCluey, 78 Mo.
676; Bridgford v. Tuscumbia, 16 F. 910; Blaen
Avon Coal Co. v. McCulloch, 59 Md. 403; Dickerman v.
Chapman, 54 Vt. 506; Poweshiek v. Stanley, 9
Iowa 511; Lane's Will, 2 Dana [Ky.], 107; Pruden v.
Alden, 23 Pick. [Mass.], 184; Allen v. State,
21 Ga. 219; Moody v. Butler, 63 Tex. 210;
Taymouth v. Koehler, 35 Mich. 22; Sturdy v.
Jacoway, 19 Ark. 499; Norman v. Olney, 64 Mich.
560; Ex parte Carr, 22 Neb. 535; People v. Dennis, 4
Mich. 617; Trumble v. Williams, 18 Neb. 144;
Ponca v. Crawford, 23 Id., 668; Murphy v.
Lyons, 19 Id., 694; Birdsall v. Carter, 5 Id.,
520; Freeman, Judgments, sec. 407; McClay v.
Foxworthy, 18 Neb. 298; Seward v. Didier, 16
Id., 59; Roberts v. Flanagan, 21 Id., 503;
Fowler v. More, 4 Ark. 570; Darrett v.
Alexander, 25 Ala. 265; Tom v. Syers, 64 Tex.
339; Egan v. Grece, 45 N.W. [Mich], 74.) The entries
on the appearance docket were sufficient as record evidence.
(O'Driscoll v. Soper, 19 Kan. 574; Baker v.
Coe, 20 Tex. 429; Leland v. Cameron, 31 N.Y.
115; Fowle v. Coe, 63 Me. 245; Thorn v.
Ingram, 25 Ark. 52; Tutt v. Boyer, 51 Mo. 425,
431; Saxon v. Cain, 19 Neb. 489; McAusland v.
Pundt, 1 Id., 240; McKeighan v. Hopkins, 14
Id., 368; Davis v. Hudson, 11 N. W. Rep., 139.)
R. W.
Sabin, for appellees: A license to an administrator to sell
real estate can be proven by parol only when clearly shown to
have existed and been lost. (Lessee of Goforth v.
Longworth, 4 O., 130; Newcomb's Lessees v.
Smith, 5 Id., 447; Eakin v. Doe, 48 Am. Dec.,
770; Gelstrop v. Moore, 59 Id., 254; Clements v
Henderson, 48 Id., 216; Williamson v.
Williamson, 41 Id., 636; Worthy v. Johnson, 52
Id., 399; Campbell v. Knight, 45 Id., 107.)
OPINION
MAXWELL, J.
This is
an action by the plaintiffs as heirs of their father, Isaac
Keller, to remove the cloud from certain real estate which
they claim to possess as said heirs.
On the
trial of the cause in the court below the court rendered
judgment in their favor, from which the defendant appeals to
this court.
It
appears from the record that in the year 1872 one Isaac
Keller, a resident of Gage county, died in said county; that
he left a widow and two children--the plaintiffs in this
case; that he possessed but little personal property and owed
debts to a considerable amount; that the claims were duly
filed and allowed against the estate. The personal estate
consisted largely of property to which the widow was entitled
and it was nearly all delivered to her. After the debts were
allowed in the probate court application was made to Judge
Gantt for license to sell certain real estate. The judge made
an order to show cause and license apparently was issued, but
no copy of the same has been found. It is not material,
however, as no sale took place under the first license. A
second order to show cause was duly published and it is
claimed a license was granted. The record, however, fails to
show such license. A sale by the administrator took place and
the land was purchased by L. W. Colby, the sale confirmed and
a deed made to the purchaser. The second order for hearing is
as follows:
"In
the matter of the application of Oliver Townsend, administrator of the estate of Isaac Keller, deceased,
to sell real estate.
"Application
having been made to the district court of the first judicial
district of Nebraska, in and for Gage county, by Oliver
Townsend, administrator of the estate of Isaac Keller,
deceased, late of Gage county, Nebraska, for permission to
sell certain real estate situate in Gage county, Nebraska,
belonging to the said estate of Isaac Keller, deceased,
notice is hereby given to all persons interested in said
estate to appear before me at my office in Nebraska City,
Nebraska, on the 4th day of October, 1873, at 10 o'clock
A. M., to show cause why said application should not be
granted.
"Ordered,
that the above notice be published in the Beatrice Express
for six consecutive weeks.
"Dated
August 2d, 1873.
"DANIEL
GANTT, Judge."
There
is also the order of confirmation as follows:
"District
court journal, page 420. Spring term, 1875.
"In
the matter of application of Oliver Townsend, administrator,
to sell lands.
"Now
on this 6th day of May, A. D. 1875, being the third day of
the term, came this cause on further to be heard upon the
motion heretofore filed by the plaintiff to confirm the sale
of real estate, heretofore made in this cause, and no cause
having been shown why said sale should not be confirmed, and
the court having carefully examined the proceedings of the
administrator, that the said sale has in all respects been
made according to law, it is therefore ordered and adjudged
by the court that the sale of said premises described as
follows, to-wit: the west half of section 7, in township 2
north, of range 8 east, in Gage county, Nebraska, containing
320 acres, be, and the same is hereby, confirmed in every
particular, and the said administrator is hereby ordered to
make the purchaser a deed for the lands and tenements so
sold.
"Ordered, that the court take a recess until
tomorrow morning at 9 o'clock A. M.
"D.
GANTT, Judge."
The
record also contains the deed of the administrator to the
purchaser as follows:
"Know
all men by these presents, that I, Oliver Townsend, of
Beatrice, Gage county, Nebraska, administrator of the estate
of Isaac Keller, deceased, late of said Gage county, by
authority of the district court of the first judicial
district, within and for the county of Gage, holden at
Beatrice on the 6th day of May, A. D. 1875, and in
consideration of $ 1,011.20 paid by Leonard W. Colby, of the
county of and state aforesaid, the receipt whereof is hereby
acknowledged, do hereby give, grant, sell, and convey unto
the said Leonard W. Colby, his heirs and assigns, a certain
tract of land situate in Gage county, state of Nebraska, and
described as follows: The west one-half of section 7, in
township 2 north, of range 7 east, in the county and state
aforesaid:
"To
have and to hold the above granted premises to the said
Leonard W. Colby, his heirs and assigns, to his use and their
use and behoof forever. And I do for myself, my heirs,
executors, and administrators, covenant with the said Leonard
W. Colby, his heirs and assigns, that in making sale of the
real estate above described I am duly authorized by the court
aforesaid; that I have complied with the order of said court
by taking the oath by law required and by giving public
notice of the intended sale as therein directed, and that I
have in all things observed the rules and directions of law
relating thereto.
"In
witness whereof, I, the said Oliver Townsend, have hereunto
set my hand and seal, this 6th day of May, A. D. 1875.
OLIVER
TOWNSEND,
"Administrator.
"In
the presence of
"N.
K. GRIGGS."
"A.
PETRON."
This deed was duly acknowledged and recorded.
The
oral testimony shows that the papers in the case were
prepared by Mr. Griggs, an attorney, and while he cannot
swear positively that he remembers the license, he does
testify in effect that there was such license. Mr. Colby, an
attorney, also testifies that before the sale he examined the
papers, which were then fastened together, and compared them
with the statute and came to the conclusion that the
statutory requirements had been observed. He has no distinct
recollection of...
