
    DOE, ex dem. SCHOOL COMMISSIONERS vs. GODWIN.
    [EJECTMENT FOB SCHOOL LANDS.]
    1. Title of purchaser of school lands. — A purchaser of school lands, at a sale made under the act of 183*7, (Clay’s Digest, 524^6,) who has paid the purchase-money in full, and obtained the certificate of the commissioners, duly acknowledged, has a perfect title without a patent.
    2. Presumption in favor of affirmative charge. — Where the bill of exceptions does not purport to set out all the evidence, the appellate court will presume that a general affirmative charge was justified by the evidence.
    
      Appeal from tbe Circuit Court of Russell.
    Tried before tbe Hon. John Gill Shorter.
    The bill of exceptions in tbis ease is as follows :
    “On tbe trial of tbis case, tbe plaintiffs proved, that they were tbe school commissioners of tbe township which was entitled to tbe section of land, a part of which is sued . for; also, tbe actual yearly value of tbe land, and tbe defendant’s possession for tbe last ten years. It was admitted, that no deed or patent from tbe State bad issued to tbe defendant. Tbe defendant proved, that tbe land bad been sold to him by tbe commissioners of tbe township, at public sale duly bad, under which purchase be went into possession; that be gaves bis notes for tbe purchase-money, as by law directed; that be bad been sued on said notes by tbe Bank, and had paid tbe amount thereof, with costs, to tbe sheriff under execution. Tbe defendant, introduced proof, also, that- a certificate of purchase, in usual form, was issued to him, but bad been lost. The plaintiffs introduced tbe evidence of E. M. Hastings, showing that tbe money bad never been paid into bank, for tbe benefit of tbe township. Tbe court charged tbe jury, that if they believed all tbe evidence, they must find for tbe defendant; to which charge tbe plaintiffs excepted,” &c.
    Tbe charge of tbe court is tbe only error assigned.
    Geo. D. Hoopee, for appellant.
    Jas. E. Belser, contra.
    
   STONE, J.

Under tbe act of 1837, it is provided that certificates of purchase, issued by school commissioners, and acknowledged according to its provisions, “shall operate as a title, upon condition only that tbe whole payments [of tbe purchase-money] shall be made.” — Olay’s Digest, 525, § 21. If tbe defendant below bad complied with tbe terms of tbis statute, be bad a good and valid defense.

It is argued here, that as tbe bill of exceptions does not inform us when tbe payment was made — whether before or after tliis suit was brought — the charge of the court cannot be maintained. This would probably be the case, if we were authorized to presume the' bill of exceptions contains all the evidence. But there is nothing in the bill of exceptions to justify such presumption.

In the case of Barnes v. Mobley, 21 Ala. 238, our predecessors said, “It is impossible for this court to say that the circuit court erred, in charging the jury that, if they believed all the proof, the plaintiff was not entitled to recover; for the simple reason, that all the proof is not set out in the bill of exceptions.”

The following propositions may be regarded as settled definitively in this court:

1. That bills of exceptions are to be construed most strongly against the exceptor.

2. That error will not be presumed, but must be affirmatively shown.

3. That when an affirmative charge is given, which is correct as an abstract legal proposition, this court will presume there was evidence to justify the charge, unless it affirmatively appear to the contrary. — Morris v. The State, 25 Ala. 57; McElhaney v. The State, 24 Ala. 71; Gaines v. Harvin, 19 Ala. 491; Bryan v. Ware, 20 Ala. 687; Sammis v. Johnson, 22 Ala. 690; Furlow v. Merrill, 23 Ala. 705.

We feel bound to presume, in lavor of the correctness of the charge of the circuit court, that there was evidence to justify it.

The judgment is affirmed.

Bice, C. J., not sitting.  