McBryde v. Rhodes , 69 Ala. 133 ( 1881 )

STONE, J.

The present case arose out of an application to-establish a lost record, and the bill of exceptions affirms it contains all the evidence. We think the proof reasonably shows that John McBryde died the owner of the lands in controversy; that Northcutt was appointed his administrator; that hej Northcutt, sold the lands in controversy to the highest bidder; that Lundy & Gruice became the purchasers; that they paid the purchase-money ; that Northcutt as administrator made them a title in 1863, and that they, and those claiming under them, have ever since held possession of the lands. There is an entire absence of proof of every other averment in the petition, showing the authority of Northcutt to make the sale and conveyance. There is not a semblance of evidence that any petition was filed,, praying an order of sale, that any testimony was taken, that any order of sale was granted, that any report of sale, or of payment of the purchase-money was made, or that the sale was confirmed, or an order to make title granted. These facts, and the contents of the petition, may be very difficult of proof, owing to the death of most of the parties who participated in them; but courts can find facts only on evidence before them. The Probate Court erred in the decree rendered. — Bishop v. Hampton, 19 Ala. 792; Shorter v. Sheppard, 33 Ala. 648; Smith v. Wert, 64 Ala. 34.

Reversed and remanded.