
    Newcomb’s Lessee v. Christopher Smith.
    Order for sale of decedent’s real estate, made in 1813, can only be proved by the record. If such order be not entered on the minute-book of the court, as required by law, it can not be valid, and parol proof, or other memorandum in writing, to show that it was in fact made, can not be received. '
    In 1813, order for sale of real estate, by administrator, is to be made after return of the appraisement.
    Sale of decedent’s real estate, made by administrator, upon joint application with guardians, not to pay debts, but to maintain children and improve the property, is invalid.
    This was a motion for a new trial, in an action of ejectment, reserved from the county of Hamilton.
    On the trial the plaintiff exhibited a connected legal title to lot No. 40 in Cincinnati. The defendant’s title depends on the validity of a sale of the lot by the administrators of Jesse Newcomb. The sale was proved by the administrators’ deed. To prove the right to sell, the following documents were offered in evidence:
    1. A paper from the files of the common pleas of Hamilton county, indorsed, “A petition for the sale of real estate of Jesse Hewcomb, deceased, April, 1813,” a copy of which is as follows:
    . “To the honorable judges of the court of common pleas, Hamilton ■county:
    
    “We, your petitioners, who being appointed administrators of the estate of Jesse Newcomb, and guardians of the children of said Newcomb, deceased, humbly showeth that we are anxious for the welfare of his widow and children, take this means to acquaint the honorable court with the situation of the property, consisting -of a lot of ground in Cincinnati, situate on Sycamore street, being part of lot No. 40 in said town plat, being thirty-three feet in front and one hundred and ninety-eight feet *deep, with the walls of a brick house twenty-four by eighteen feet, and shingled in, and a small frame building back, together with a work-house thereon ; that the property is now 'in the situation it was at the death of said Newcomb, and there is no funds belonging to said ©State to finish it, nor for the support of the .widow and children. We therefore pray the honorable court to grant us a‘ permit to sell the real property.
    “ William Dynes, Administrator.
    
    Ann Newcomb, Administratrix.
    
    Christopher Smith, } Guardians-
    
    “ Cincinnati, April 14, 1813.”
    On the back of this is written, in the handwriting of one of the associate'judges of that court: “Allowed. John Wood, John ■Crone, James Hicks, appraisers.”
    2. The following document, under the seal of the court: ■“Whereas, by a petition to the honorable the court of common pleas of Hamilton county, at April term, instant, close in these words” (recites the foregoing petition). “Which petition being read, and all and singular the premises aforesaid being seen and fully understood, upon mature deliberation the court do order that the above-described property be sold and conveyed by said petitioners, and they appoint John Wood, John Crone, and James Hicks to appraise said property agreeably to the statute in such -case made and provided, and that you in all things observe and bo governed thereby.
    “ By order of court.
    “ [l. s.] In testimony whereof I have hereunto set my hand, .and affixed the seal of our said court of common pleas, at Cincinnati, this 15th day of April, 1813.
    “JohnS. Gano, Clerk.”
    
    This paper is indorsed thus: “ Order of court for the sale of real estate of Jesse Newcomb.”
    3. The original appraisement is as follows: “ We, the appraisers chosen by the court.of common pleas in the county of Hamilton to value the real property of Jesse ^Newcomb, deceased, after viewing the premises, do value the same at one thousand one hundred dollars.
    “John Crone,
    James Hicks,
    John Woods,
    “Appraisers.
    
      “ Cincinnati, April 16, 1813.”
    4. The settled account of the administrators of J. Newcomb.
    W. Dynes, sen., and Ann Newcomb, administrators of J. New-comb, deceased, in account with the estate of J. Newcomb, deceased.
    Dr. to divers items.....................................................$464 22'
    Cr. by divers items..................................................... 464 22
    Amount of sale of house and lot................. $1,590 00
    Interest on $1,060, 1 year.....:.................... 60 36 — $1,650 36
    Paid widow one-third amount of sale........... 530 00
    Paid interest on $1,060............................. 60 36
    Paid Dr. Douglas his bill........................... 10 00
    Paid widow for support of three children.... 60 00
    Paid for bank stock................................. 990 00 — $1,650 36-
    This account is indorsed, “Jesse Newcomb, dec’d, filed August 16, 1814. J. S. Gano, Clerk.”
    Mr. Gano, the clerk, testified that the journals of that and several other terms were originally kept in separate stitched paper books, which he had collected and bound. Some leaves appeared not to be present, and some entries were written on loose papers, attached to the book by wafers.. He knows no alteration or mutilation, but, as far as he knows, they remain as they were made by the court. That the petition was filed by him, and the order" of. sale made by the court, but no entry of it is found on the journals.
    The plaintiff objected to the whole of this evidence, but it was. received by the court, who directed the.jury to return a verdict for the defendant. The plaintiff moves the court for a new trial, assigning for cause, that the evidence was improperly- rejected,, which motion is reserved for decision in bank.
    *Longworth and Worthington, for plaintiffs.
    Storer and Fox, for defendants, insisted:
    1. That the proof shows an order made.
    
      2. That however improvidently or erroneously granted, it can not now he questioned, or its propriety investigated. 4 Dal. 451; 2 S. & R. 4; 11 S. & R. 431; 4 Wash. C. C. 657; 13 Mass. 166; 6 Johns. Ch. 387; 7 Wheat. 59; 2 Pet. 163; 3 Ohio, 257, 560; 4 Ohio, 130.
   Judge Lane

delivered the opinion of the court :

If the testimony does not prove that an order for the sale of the-property was made by the court, it ought to have been rejected, and the plaintiff is entitled to a new trial; for the -power of the-administrator to sell arises from the action of the court, and without it the sale is void. By section 102 of the judiciary act then in force, 8 Stat. 294, proceedings, orders, judgments, and decrees-are of no force or validity until entered on the journals and signed by the presiding judge; consequently the order of sale can only exist as a matter of record, and is only provable by its production. Heirs of Ludlow v. Johnston, 3 Ohio, 577; Goforth’s Lessee v. Longworth, 4 Ohio, 129.

The parol testimony must be rejected, for the fact can not be-proven by parol. An inspection of the journals afford no ground to raise the presumption that they ever contained such an order.. No probable evidence is presented that any part of the journals of that term is lost. The paper described as No. 2 shows no reason for believing such an order was entered on the journals. It is the certificate by the clerk of an act of the court, which can only be shown by the production of the record, or by making proof of its loss.

No act of the court, or of any member of the court, ajjpears in. any of this testimony, except the indorsement of the appraisers’’ names and the word “ allowed ” written on the original petition-by one of the associate judges. By the statute then in force, 8 Stat. 159, 332, on an application *by an administrator to sell lands, the court, on being satisfied of the necessity fora sale, were-directed to appoint appraisers, but no order for sale was to be made until the return of the valuation. 4 Ohio, 130. If the word “ allowed ” should be held to imply that the court granted the' prayer of the petition, the interpretation which we should attach to it, standing in its connection on this paper is, that the court, were convinced of the necessity of the sale, and assented to the-appointment of appraisers; not that they designed to make a premature order of sale, for an ambiguous phrase should be construed into that which the court could rightfully perform, rather than into an irregular exercise of power.

We therefore are led to the conclusion, that the testimony offered contains no legal evidence that an order of sale was made, .and it should therefore have been rejected.

Perhaps another reason exists for the exclusion of the testimony. I do not refer to the fact that Smith, one. of the guardians, and ■ one of the petitioners, was the purchaser, since perhaps this objection might not prevail, except in a court in equity. But the court of common pleas had power by section 32 of the statute to .authorize administrators to sell to pay debts. By section 34 the ■ court might authorize guardians to sell the lands of their wards “ for good cause shown.” This application to sell was by both administrators and guardians, not .to pay debts of the estate, but for the support of the widow and children, and for the benefit of their property. With these objects the administrators had no concern, the guardians alone could act; yet, if a due order of sale ■/was made in this case, it was executed, not by the guardians, but ■by the administrators, who were not capable of receiving any such .authority. 1 Pet. 340; 2 Pet. 157.

New trial granted. Costs to abide the event of the suit.  