
    JANUARY TERM, 1849.
    Stephen Stevenson’s Heirs v. Andrew McReary.
    While the rule is well settled, that the probate court cannot order a sale unless every thing necessary to give them jurisdiction of the person and of the subject matter appears upon their records ; yet where an administrator made a sale of real estate of his intestate, gave the purchasers a deed, in which he recited that the steps required by law had been taken, and placed the purchaser in possession ; and thirty-four years afterwards the heirs of the intestate brought an action of ejectment for the,land ; held, that the court would presume from the lapse of time, and the defendant’s undisturbed possession, that the administrator had complied with the requisites of the law, though in some particulars the records of the probate court did not show that he had done so ; and this presumption will prevail, unless it can be shown affirmatively that the administrator did not sell according to law ; upon proof of which the presumption would yield.
    
      And it seems that such a presumption is strengthened by the proof that the sale took place in the infancy of the government; and that the officers who at the time and subsequently had charge of the records of the probate court, were careless and negligent in the discharge of their duties ; and such proof is legal, to show the probability of a loss of the record.
    An administrator of Stephen Stevenson, deceased, made a sale of real estate of his intestate in 1806, gave the purchaser a deed and put him in possession ; in 1840 the heirs of the intestate sued the purchaser in ejectment for the property ; the records of the probate court showed the appointment of the administrator, and the report of insolvency of the estate, and the publication of citations to those in interest to show cause against the sale, in the newspaper, but did not show that they were put up at three most public places in the county ; the order of sale on the rough minutes of the court followed a former order of sale of the estate of another person, and was in these words — “the same order respecting the estate of Stephen Stevenson, deceased ; ” there was no proof that the administrator gave the bond required by law, or that he gave notice of the time and place of sale, nor was there proof that he made a written report of the sale to the probate court; but the deed of the administrator recited the title, seizure, and death of Stevenson, the appointment of his administrator, the insufficiency of the personal estate to pay the debts, the report of insolvency, the order of court to sell the tract of land, the giving of due notice according to the statute, and the actual sale at public vendue to the highest bidder; held, that under the circumstances the court would presume that the requisites of the law were all complied with by the administrator in making the sale.
    It seems that the recitals in an administrator’s deed, after the lapse of thirty-four years from the date of the deed, accompanied with possession under it, v are entitled to great weight, if not primó, facie evidence of their truth.
    It seems that where an administrator has complied strictly with all the prerequisites of the law to his authority to sell his intestate’s realty, and has obtained an order of sale, subsequent irregularities of the administrator in making the sale, will not, in analogy to a sheriff’s sale, affect a bona fide purchaser ; the sale of the administrator is under a power derived from the order of the court, and if the power be defectively executed it is favored by the law.
    Whether a failure by an administrator to give bond, on obtaining an order of sale of his intestate’s realty, as required by law, will vitiate the sale — query l it would not vitiate the order of sale, if it did the sale; whether such a bond is part of the record or not — query l its execution after the lapse of thirty-four years from a sale by the administrator will be presumed.
    It is not error to refuse an abstract charge upon a point of law not material to the controversy; therefore the refusal to instruct the jury, in an action of ejectment brought by heirs to recover land sold by an administrator of their ancestor, that the' reservation of the widow’s dower in the order of sale, was evidence that the intestate left a widow, was not error, as it was immaterial whether he left a widow or not.
    Cohabitation of a man and woman, and the acknowledgment on their part that they are man and wife, and the raising and providing for their children, and the acknowledgment of them as such, are circumstances from which a marriage may be presumed between the man and woman, and are presumptive evidence of their marriage ; but where there is rebutting testimony on the subject which goes to disprove a marriage, it will be determining on the weight of evidence for the court to charge the jury, that such proof of cohabitation &c. are legal evidence of marriage, and they must find accordingly.
    n an action of ejectment by the heirs of an intestate whose administrator had sold his realty, and in the deed warranted the title “ excepting only the widow’s right of dower,” it was held, that the purchaser was not estopped from controverting the marriage of the intestate to his widow, nor from questioning the legitimacy of their children who were the plaintiffs.
    Recitals in a deed estop only the party making them, and those claiming under him ; and estoppels must be mutual; therefore where the heirs of an intestate refused to recognize the deed of his administrator to realty sold by him, and brought suit against the purchaser, it was held, that the purchaser was not estopped by the recital in the deed, excepting the widow’s dower from the warranty, from proving the illegitimacy of the heirs.
    In an action of ejectment brought by the heirs of an intestate against a person, claiming under a purchase by deed from his administrator, the court below properly instructed the jury, that if the defendant had held twenty years adverse possession, the plaintiffs were barred unless they were saved by infancy or coverture ; when the statute begins to run, it continues to do so ; and if the plaintiffs rely on the exceptions in favor of infants or femes covert, they must show that they are entitled to the benefit of the exceptions.
    In error from the circuit court of Adams county; Hon. Charles C. Cage, judge.
    On the 28th of February, A. D. 1840, David K. Stevenson, Samuel Stevenson, Jackson Stevenson, Robert Stevenson, Emily Stevenson, Ellen Stevenson, Sarah Bryant, Mary A. Sulser, Melissa Bryant, Minerva Bryant, Franklin Bryant, John Sulser, Thomas Tucker, Elizabeth Tucker, John S. Taylor, Mary Sturgeon, Rachel Marlow, Charles Marlow and Amelia, brought their action- of ejectment, to which Andrew McReary was made defendant. The plaintiffs gave notice that to avoid the expense of another action, they would in this suit ask for damages by way of mesne profits. A survey of the land in controversy was ordered and the cause continued until May, 1843, when a trial was had, and a verdict rendered for defendant, and judgment by the court accordingly.
    A bill of exceptions was sealed, from which it appears that a jury being empannelled and sworn, the plaintiffs offered and read in evidence, in support of their title to the premises in question, a patent from the Spanish government to Stephen Stevenson, the ancestor of the lessors of the plaintiff. This patent was issued by Stephen Miro, Governor, &c. of the province of Louisiana and West Florida, &c., in accordance with a survey made by Charles Trudeau, government surveyor of the province of Louisiana; and is dated the 15th day of March, A. D. 1789.
    Signed, “Stephen Miro, [seal],” and countersigned by “Andrew Lopez Armente, Secretary.”
    The plaintiffs next read to the jury the certificate of survey made by Charles Trudeau, and accompanying this patent.
    This certificate and survey calls for and embraces three hundred superficial square arpens of land, lying in the then Natchez district, about nine miles east of Fort Paumure, giving courses, distances, boundaries, &c.
    The plaintiffs introduced the witness who surveyed the land, to prove the situation thereof, the survey by him, &c; when the defendant admitted that the land surveyed by the witness was the same described in the declaration, and that he (defendant) was in possession.
    The plaintiffs then read to the jury the confirmation of said grant and patent, made by Thomas Rodney, Robert Williams and Thomas H. Williams, commissioners, dated the 21st day of June, A. D. 1805.
    The plaintiffs then offered to read in evidence to the jury the deposition of Joseph Stevenson. The defendant objected, because it appeared by the deposition that the said Joseph Stevenson was interested in the event of this suit, and incompetent. The court overruled the objection, and the deposition was read. The defendant excepted.
    
      In his deposition, Joseph Stevenson states that Stephen Stevenson was married in the year 1796 or 1797, and died in the year 1803 or 1804. He left three children, born in lawful wedlock, namely, Mary Stevenson, now Mary Sturgeon, born in the year 1796 or 1797; Samuel Stevenson, born in the year 1800; and Rachel Stevenson, now Rachel Marlow, born in the year 1802. Samuel Stevenson died in 1827 or 1828. The others are still living. Mary and Rachel both married; Mary married Robert Sturgeon, about 1822; and Rachel married Charles Mar-low, about 1819. Samuel was never married. Besides these children, Stephen Stevenson had children not born in lawful wedlock, to wit, William Stevenson, Elizabeth Stevenson, now Elizabeth Taylor, Joseph Stevenson, Isaac Stevenson, now deceased, Stephen Stevenson, and Mary Stevenson, formerly the wife of Bryant.
    Of the children of Stephen Stevenson, the following are dead, leaving the following children lawfully • begotten: — William Stevenson, leaving children; Samuel, David K., Jackson, Ellen and Emily: Elizabeth Stevenson, who first married William Taylor, and, after his death, Joseph Brandon; — leaving the following children lawfully begotten, namely, John S. Taylor, Elizabeth Taylor, Mary Taylor, Stephen Taylor, James Taylor and William Taylor; the last three of whom are now dead: Mary Taylor married Jesse Holland, and died, leaving two children, both of whom are’now dead; Stephen Stevenson died, leaving children lawfully begotten, Amelia Stevenson, who married William Row, now deceased, and Robert Stevenson.
    That Samuel and David K., sons of William Stevenson, married, the former a Mrs. Rogers about ten years since, and David K. a lady (whose name he does not now recollect) about five years since; Mary Taylor, daughter of Elizabeth Stevenson, married Jesse Holland about fifteen years since; Mary Sulser, daughter of Nancy Stevenson, married John Sulser about eight years since; Melissa Sulser, -daughter of Nancy Stevenson, Isaac Sulser about eighteen months since.
    On cross-interrogation, he stated that he is a so.n of Stephen Stevenson, deceased; that he resided in Adams county, Miss., at the time of the death of his father; since his death he has resided in the state of Louisiana, except two years he resided in Wilkinson county, Miss.
    That he has answered the interrogatory (of plaintiff) from his own personal knowledge, and from his acquaintance with the individuals.
    That Mary Sturgeon resides in the Parish of Point Coupee, La.; Rachel Stevenson (now Marlow) with her husband, Charles Marlow, resides in the Parish of Wachita, La.; Amelia Row and Robert Stevenson reside in the Parish of West Feliciana, La.; David K., Samuel, Jackson, Ellen and Emily Stevenson reside in Wilkinson county, Miss.; Sarah Bryant, Mary A. Sulser, Franklin Bryant and Minerva Bryant, John Sulser and Melissa Bryant reside in the Parish of West Feliciana, La.; Thomas Tucker and Elizabeth Tucker reside in the city of New Orleans; and John S. Taylor resides in Adams county, Miss.
    Witness is fifty-three years of age, and resides in the Parish of West Feliciana, La.
    The witness stated, in a chronological order, the names and births of the children of said Stephen Stevenson, deceased; the dates of their respective marriages and deaths at length, but it is not necessary to set them out.
    The witness stated, that the illegitimate children of Stephen Stevenson, spoken of by witness, were by the same mother as the legitimate; and Stephen Stevenson, after his marriage, acknowledged and recognized said illegitimate children as his own. And that Stephen Stevenson and his wife lived together as husband and wife previous to their marriage, and were generally reputed to be husband and wife. Does not know whether there was or not a contract of marriage between said husband and wife previous to marriage.
    The plaintiffs then read to the jury the deposition of John Fletcher, who proved that the plaintiffs were generally reputed to be the children and grand-children of Stephen Stevenson, deceased.
    The following named plaintiffs were generally reputed to be the legitimate children of Stephen Stevenson, deceased: — Rachel Marlow; and the following named plaintiffs were generally reputed to be his children born out of lawful wedlock, to wit, Mary Sturgeon, Joseph Stevenson, William Stevenson, deceased nine or ten years ago, Mary, alias Nancy Bryant, Elizabeth Stevenson, deceased some ten years ago. William Stevenson has been dead some ten years; and David K., Samuel and Jackson were generally reputed to be the lawful children of said William, deceased.
    Does not know whether Mary Bryant is dead or not, but that said Mary, alias Nancy Bryant, had lawful children, and remembers that some of her children were named Sarah and Melissa, and knows she had others; the names of whom he does not know.
    Elizabeth Taylor was commonly reputed to be the daughter of Stephen Stevenson, deceased; she had been dead about ten years, and left the following children: Elizabeth Taylor, now Elizabeth Tucker, wife of Thomas Tucker; and John S. Taylor. That said Elizabeth Taylor was generally reputed to be the lawful wife of said Thomas Tucker, but whether they are now living, he knows not.
    Witness did not know Stephen Stevenson in his lifetime; he was generally reputed to have died in 1804 or 1805; that he left the following children, generally reputed to have been born in lawful wedlock, to wit: Samuel, who died some fifteen years ago, and Rachel, who married Charles Marlow.
    Witness knows that some of the children of said Stephen Stevenson did leave children lawfully begotten, and she proceeded to give their names, marriages, deaths, &c., which need not be further detailed.
    On cross-interrogatories, he states that he became acquainted with these parties at various times within the last twenty years, but he has seen none of them, except John S. Taylor, for the last seven years.
    With regard to the ages of said children at the death of their father, Stephen Stevenson, witness answers that he knew said children only by repute as such, and he knows not their ages. Witness came to Mississippi in 1817.
    
      The defendant here admitted the decease of the widow of Stephen Stevenson, deceased, anterior to the commencement of this suit. The plaintiffs here closed.
    The plaintiffs admitted that James Dunlop had been duly appointed administrator of Stephen Stevenson, deceased, prior to the exhibit of the personal estate of, and debts due by, the late Stephen Stevenson, deceased, hereinafter set forth.
    The defendant then offered and read in evidence, from the records of the orphans’ court, the following to wit: “After-wards, to wit, at the July term, A. D. 1805, said Dunlop filed in said orphans’ court the following exhibit, to wit, “ Exhibit of the personal estate of, and debts due by, said Stephen Stevenson, deceased. The property, as per inventory, returned though not appraised, does not exceed the sum of $1500,00
    Note due to J. W. A. Loyd, $172,40¿-
    S. S. account with Samuel Neill, 383,00
    “ note due to James Wallace, 100,00
    S. S. account with Nicholas Robb, 43,50
    2319,90£
    “ From the above statement it appears that the personal estate is insufficient to pay the debts.
    “There is also a number of other claims against said estate, some unliquidated, and some in suit.
    “J. Dunlop, Administrator.
    “ Dec. 2d, sworn to and subscribed before me,
    “Samuel Brooks, J. P.”
    The defendant then offered and read in evidence to the jury the deposition'of Sarah Bradalbane, a witness for defendant, who stated that she is fifty-nine years old; was born and raised in Adams county, within a mile of Stephen Stevenson’s; knew the family of Stevenson; lived close to them till they moved away; after said Stevenson was killed, she went with her mother to Daniel Stevenson’s, brother of the deceased, who claimed the money coming from the sale of the real estate of said Stephen. Witness’s mother, at request of the widow of said Stephen Stevenson, went to said Samuel’s to dissuade him from taking the money from his brother’s children; that to do so would disgrace him, &c. This was after the sale of the land. The amount left, after paying debts of the estate, was what said Samuel claimed as heir to his brother Stephen. Witness’s mother said to Samuel, “you know they are his children, and it would disgrace you to take any thing from them.'” Shortly afterwards Samuel moved away, and did not afterwards claim the money. Samuel was then an old man, and must now be dead. He had a family of children when he moved away; does not know where he went; the widow of Stephen Stevenson told witness she was going to get the money comihg after the debts were paid, and invited witness and her sister to help her to make clothing for the children, for which she intended to lay out said money. Witness and her sister saw said purchases, and said widow told her, witness, that all the money left, after paying debts of the estate, was laid out by her in clothing for Stephen Stevenson’s children. Witness never understood that said Stephen, and Molly Stevenson, the widow of said Stephen, were ever married, but from conversation in witness’s presence, between her mother and said Molly and said Samuel, witness understood that they never were married; the said Molly never said that they were married, and never pretended that the children of said Stephen were his lawful heirs. Witness’s mother has been dead thirty-one years, and from conversation with her mother, witness says her mother must have known said Stephen and Molly before they lived together. The reputation of the neighborhood was that they were not married. Stephen was killed, according to witness’s recollection, in 1804. Samuel lived on the land in question about a half mile distant, and continued there cultivating it until it was sold; defendant took possession of the land early in 1806, or late in 1805. Samuel claimed said land as heir. He had a sister married to one Phipps; she is now dead, leaving some children. Witness thinks said Molly had nine children,.to wit, William, Betsy, Joseph, Nancy, Isaac, Stephen, Polly, Samuel, Rachel. Samuel was the youngest son, and she thinks Rachel was the youngest child; thinks Samuel was six or seven years old when the land was sold; don’t know the difference in the ages of Samuel and Rachel.
    On cross-examination she states that she never heard Stephen say he was or was not married; does not know of her own knowledge, whether they were or were not married ; they may have been married without her knowledge; the family of Stephen Stevenson removed in 1807 to the other side of the Mississippi river; that the question of Stephen Stevenson’s marriage with said Molly was never agitated until after the death of Stephen; they lived together as man and wife, and kept house together; she never heard them say any thing about their children during the life of both. To the interrogatory, did not the said Stephen, during said cohabitation, provide for said Molly and said'children as a husband and a father, she answers, — “ if she must answer, she says that he did not provide for them properly ; he was a good-for-nothing, drunken fellow, and did not give them proper clothing;” but that the children lived with Stephen and Molly,.during their cohabitation, as their children.
    After the defendant took possession of the land in question, Molly and her children stayed and finished their crop.
    To the reading of this deposition plaintiffs objected; the objection was overruled; plaintiffs excepted.
    The defendant then offered and read in evidence the deposition of Wm. Carson. Witness was sixty-five years old; had known said Stephen before his death; they had lived near together a long time; witness thinks said Stevenson had children born when he first knew him; witness lived within a mile of said Stephen from the time he first knew him until his death; he knew said Molly Stevenson with whom said Stephen lived; witness does not know of their haying ever been married. Upon being asked what was the reputation of the neighborhood as to their being married, he answers, that there was no great deal said about it, but that he heard some talk that they were not married; witness thinks he must have known said Stephen upwards of ten years before his death; witness thinks that if a marriage had taken place between said Stephen and Molly, he would have known it. To the interrogatory, whether, if they had been married during his acquaintance with them, he would not have heard of it, and whether he would not now recollect the circumstance, he answers, he thinks he would, but that might not be the case; he has no doubt that if such marriage had taken place he would recollect it. Stephen Stevenson was killed, he thinks, in 1804; he cannot tell how old the youngest child of Molly Stevenson was at' the time of the death of Stephen.
    On cross-examination, he states that he does not know how long Stephen and Molly lived together prior to the death of Stephen; does not know how old Stephen was at:the time of his death, nor where he was born, nor what time he came to the territory of Mississippi; knows that said Stephen had children by said Molly, but does not know how many; he always understood that Stephen and Molly lived together as man and wife, and they held themselves out to their neighbors as such during the time he knew them; that Stephen in his lifetime treated said children by Molly as his lawful children; he never heard Stephen acknowledge said children as his own, but that he said Stephen always treated them as such; that it appeared to him during the time he knew said Stephen that he lived with, and provided for, said Molly and children respectively as a husband and father.
    Defendant then introduced a witness, Ralph North, to testify in relation to the records of the Probate court of Adams county, Miss., as a foundation for the introduction of those portions of said records hereinafter set forth; to which the plaintiffs objected, but was overruled, and plaintiffs excepted. North testified: That the volume of records shown to him and the court containing the following order, to wit, “ Afterwards to wit at the January term of said orphans’ court, A. D. 1806, it was ordered by said orphans’ court of Adams county, that Joshua Tail, administrator of John Lee, make sale of all the personal property of said Lee, deceased.” “That it is the real property of Patrick Connelly, deceased, except the widow’s dower.” “ The same order respecting the estate of Stephen Stevenson, deceased, was the oldest volume of records of the proceedings of the orphans’ court of said Adams county; that he was now the clerk of said court and had been for several years, and was well acquainted with the clerk’s office; that at the date of said order, the papers and records of said court were kept very loosely; the orders, very imperfect; put down in short; could not be understood or explained without reference to preceding orders; that aforesaid order in the matter of said Stevenson’s estate had reference to the preceding orders in Lee’s and Connelly’s estates, and constituted a record of an order of sale by said orphan’s court of the real estate of said Stevenson, deceased; said North further testified on cross-examination, that he did not recollect of any order of sale like that in the matter of said Stevenson’s estate, but that orders of sale of real estate were generally made out in full. Upon this showing, defendant offered to read in evidence the orders contained in said volume of records in connection with the testimony of' North. The plaintiffs objected, were overruled, the orders read, and they excepted. North then further testified that the records of the orphans’ court of Adams county were frequently imperfect, one order frequently referred to another in a different case; there were frequently mutilations of orders, and that the minutes of said court were often transcribed incorrectly; to the admission of which testimony the plaintiffs objected.
    The defendant then introduced Woodson Wren, who stated that he was clerk of said orphans’ court in 1818, and continued in office several years; that from the negligence of previous clerks, many of the records may have been lost, many papers which ought to have been recorded were not, but were mere minutes; he found deeds, wills, and inventories that ought to have been recorded, but were not; that Leaman, the clerk of said court at that time (1805) and subsequently, was of intemperate habits, and loose in his office business; that he knew him well. To the admission of this testimony plaintiffs also objected, and on its admission, excepted.
    He testified upon cross-examination, that he did not remember to have found any orders of sale of real estate by said orphans’ court, that ought to have been recorded and were not; that he does not know that the papers, in order to have made out a com-píete record of all that ought to have been done, ever existed; that he put all the papers of said office which he found there, on file, and they have been there ever since.
    North further testified that there were no other record or records of the proceedings of said orphans’ court in his office in relation to the matter of the estate-of said Stevenson, deceased, than those produced in evidence on the trial of this case. Defendant proved by Amos Alexander, that defendant had been in the possession of the premises in the declaration mentioned since 1809 ; he had hands there at that time cultivating and clearing the land; the witness did not know how long defendant had been in possession before that time.
    Defendant then offered to read in evidence to the jury a notice contained in a newspaper published in Natchez, on Tuesday, the 3d day of December, 1805, called the “ Mississippi Herald and Natchez Gazette.” The notice was as follows:
    “Notice. — All persons interested in the lands of Stephen Stevenson, deceased, are hereby cited to appear before the orphans’ court of Adams county, at the court-house thereof, on the second Monday in January next, to show cause why so much of the said lands should not be sold, as will be sufficient to pay the residue of the debts due by the said decedent in his lifetime.
    By order, Ben. Leama-ns, Reg.
    “ Natchez, Dec. 3, 1805.”
    Also a like notice published in the same paper on the 10th of December, 1805, signed in the same manner. The facts, that such paper had been published in the city of Natchez, at that time, and that the volume containing the newspapers from which said notices were read, showed that said newspapers were the last in said volume, being admitted by plaintiffs, no other evidence was given of the authority of said notice and publication. To the reading of which notices without further proof, plaintiffs objected. The objection was overruled, and plaintiffs excepted.
    The defendant then offered to read to the jury the following deed of conveyance from James Dunlop, administrator of said Stevenson, to one Francis Nailor, viz.:
    “ Be it known to all whom it may concern, that, whereas Stephen Stevenson, late of the county of Adams, in the Mississippi Territory, in his lifetime was seized in fee of a certain tract of land in the county aforesaid, by virtue of a Spanish patent, bearing date the fifteenth day of March, in the year of our Lord one thousand seven hundred and eighty-nine, and a certificate of confirmation thereon by the board of commissioners, dated the twenty-first day of June, in the year of our Lord one thousand eight hundred and five, which said tract of land is thus described in the plat and survey annexed to the said patent. [Here follows a description of the tract of land.]
    “And the said Stephen Stevenson being so thereof possessed, died; and the said James Dunlop was by the orphans’ court of said county, duly and legally appointed administrator of the estate and effects of the said Stephen Stevenson, according, to the laws of said territory. And whereas, the said James Dunlop, after his said appointment as aforesaid, having made representation of the insufficiency of the personal estate of the said Stephen Stevenson to pay the debts against said estate to the satisfaction of the said orphans’ court, in consequence thereof, the said court ordered the said above described tract of land to be sold by the said James Dunlop, according to the direction of the statute in such case made and provided. In pursuance of which said order of court, the said James Dunlop, administrator as aforesaid, (after due public and timely notice by him given of the time and place of sale, according to the directions of said order, and in pursuance of said statute), did on the twenty7Grst day of April, in the year of our Lord one thousand eight hundred and six, expose the said tract of land to sale by public sale or outcry, and sold the same to Francis Nailor, of said county, for the sum of one thousand five hundred and fifty dollars, he being the highest bidder for the same, and that being the best price bid therefor. Now let these presents witness that the said James Dunlop for, and in consideration of, the aforesaid sum of one thousand five hundred and fifty dollars to him in hand paid, before the sealing and delivery of these presents, by the said Francis Nailor, the receipt whereof is hereby acknowledged; hath granted, bargained, and sold, assigned, transferred, and set over, and by these presents doth grant, bargain, sell, assign, transfer, and set over unto the said Francis Nailor, in pursuance of said order of court, and by force and virtue thereof, and the law and statute in such case made and provided, all that tract of land first above described, and referred to, together with all houses, outhouses, tenements, privileges, and appurtenances, thereunto belonging, and also all the right, title, and interest, which he, the said Stephen Stevenson, had in his lifetime in and to the premises and every part thereof. To have and to hold the said tract of land, with the privileges and appurtenances unto the said Francis Nailor, his heirs, and assigns forever, hereby warranting and defending said above described tract of land, with its privileges and appurtenances unto the said Francis Nailor, and his heirs and assigns, against all and every lien or imcumbrance whatever, excepting only the widow’s right of dower. In witness whereof the said James Dunlop hath hereunto set his hand, and affixed his seal, this fifth day of December, in the year of our Lord one thousand eight hundred and eight.
    “ Sealed and delivered in presence, j DunloPj [sEiL>] „
    “ Personally appeared before me James Dunlop, within mentioned, who acknowledged the within to be his signature, and his act and deed, delivered for the purposes therein mentioned.
    
      “Natchez, Dec. 5, 1808. Sam. BROOKS, J. P.”
    The defendant then offered and read to the jury a deed of conveyance of the same land from Nailor to the defendant, dated the same day as that from Dunlop to Nailor. The consideration alleged in the deed to have been paid by defendant to Nailor for said land was three thousand dollars; the deed was properly acknowledged. The plaintiffs’ objection to either of these deeds being read was overruled, and excepted.
    This was all the testimony. The plaintiffs, by their counsel, moved the court to exclude from the jury the deed from Dunlop, administrator, to Nailor, and that from Nailor to defendant, but was overruled by the court, and excepted.
    The plaintiffs asked the court to instruct the jury as follows :
    1. That a Spanish order of survey, and a Spanish patent based upon it, confirmed by the board of commissioners, accompanied by possession of the land granted, constitute a perfect title.
    2. That on the death of the ancestor, the title to his real estate vests in his heirs, and cannot be divested only in pursuance of law.
    3. The administrator of an intestate has no right in, or control over, the real estate of the intestate; except the same be conferred by the probate court in cases specified by the statute.
    4. The probate court has no jurisdiction over the real estate of intestates, except that conferred by the statute; and being an inferior court of limited jurisdiction, must show upon the face of its own records,all the facts necessary to confer jurisdiction.
    5. It must appear upon the records of the orphans’ court that notice or citation was issued to the heirs of Stephen Stevenson, to appear and show cause why the real estate of said Stevenson should not be sold, or the order of sale of said real estate by the probate court is wholly void, and confers no authority upon the administrator of said Stevenson to sell said real estate.
    6. It must appear upon the record of ths orphans’ court, that the administrator of Stephen Stevenson gave bond with surety, according to the statute, before obtaining an order of sale of the real estate of his intestate, or such order of sale is without authority of law, and wholly null and void.
    7. The citation to the heirs, and the bond of the administrator, are essential prerequisites, conditions precedent, without a compliance with which, the probate court has no jurisdiction to order a sale of an intestate’s real estate; and the performance of such requisites and conditions must appear upon the record; and if they do not so appear, a sale, under an order,of the probate court is void, and confers no title on the purchaser.
    ,8. The recitals in a deed are evidence only as between parties and privies, and not against adverse claimants ; and if the jury believe, that the defendant has offered no other evidence, that Dunlop, the administrator of Stevenson, performed the requisitions of the law as.to the mode and place of the sale of the real property of said Stevenson, than the recital in his (Dunlop’s) own deed to Nailor, the defendant can derive no title under said sale, and the deed of said Dunlop to the purchaser is entirely nugatory and void.
    9. Prescriptions of law from lapse of time are founded upon analogy to the statute of limitations, and no presumptions of law can be drawn against the saving clause of said statute.
    10. Prescriptions do not run against minor heirs.
    11. No collateral proof is admissible to impeach the authority and accuracy of a record.
    12. The reservation of the widow’s dower in the order of sale of'Stevenson’s estate, and the reservation in the deed of Dunlop, administrator to Nailor, from whom the defendant derives his title, are proof that said Stevenson died leaving a widow, and estops this defendant from denying the same.
    13. Cohabitation and acknowledgment are legal evidences of marriage; and if the jury believe, from the evidence, that Stephen and Mary Stevenson cohabited together as man and wife, and held themselves out as such to the public, and as such raised and provided for a large family of children, whom they acknowledged and held out to the world as their children, the jury must find for the plaintiffs.
    14. The statute of limitations, as to adult he'irs, begins to run from the commencement of an adverse possession, and the lapse of twenty years, with continued possession from that time, will bar such adult heir. But with respect to infant heirs and married women, the statute begins to run only from the time the disability of infancy or coverture is removed, and such infant or married woman may maintain his or her action of ejectment at any time within twenty years from the period when such disability ceases.
    15. Cohabitation of a man and woman, and acknowledgment of marriage, and the bringing up and providing for a family of children, recognized by them as their own, are legal testimony from which the jury may find the fact of marriage.
    
      16. That if any of the female plaintiffs married before they attained twenty-one, years, the statute (of limitations) does not operate, and they are not barred until twenty years after' discov-erture.
    17. That reservation of dower to the widow, in the order of probate, authorizing the sale and the recital in the deed from the administrator to Nailor, are circumstances from which the jury may infer a marriage between said Stephen, deceased, and said widow.
    18. That upon a joint and several demise the jury can find for or against any number of said plaintiffs, as the evidence in their opinion may justify.
    19. That although the defendant may have had more than thirty years’ uninterrupted possession of the premises in question, yet if the plaintiffs were minors at the time the order was made, and not parties to the proceedings in the probate court which made the order, by virtue of which the land claimed was sold to Nailor by Dunlop, the administrator, they are not bound by such lapse of thirty years.
    The court gave all these instructions to the jury, except the 5th, 6th, 8th, 12th and 13th, and refused them; to which the plaintiffs excepted.
    The defendant asked the following instructions.
    1. That if the jury find that the interest of Amelia Row in and to the land in question at the date of the demise on the first day of January, 1835', if she possessed any, was solely derived by descent from Stephen Stevenson, the younger; she is then improperly joined in the first demise, and no recovery can be had on that demise.
    2. That upon the proofs of the titles of the lessors of the plaintiffs, as shown by the deposition of Joseph Stevenson and John Fletcher, no recovery in this case can be had on the first demise contained in the declaration.
    3. That if the jury find, from the testimony, that at the date of the demise secondly laid in the declaration, any of the lessors of the plaintiffs named in the said second count, had not right of entry, no recovery can be had in this action on this demise.
    
      4. That the jury should disregard entirely the testimony of James Stevenson, on account of interest.
    5. That the defendant is not estopped by the warranty in the deed of Dunlop from controverting the fact of the marriage of Stephen Stevenson with Mary, the mother of some of the lessors of the plaintiffs, nor from questioning, the legitimacy of any, of the lessors of the plaintiffs.
    6. If the jury believe from the evidence that the defendant, McReary, has had the uninterrupted possession and enjoyment of the land sued for in this action for more than thirty years before the' commencement of this action, they have a right to infer a regular conveyance of the premises to said defendant, if they believe, from all the testimony, that they are warranted in that conclusion.
    7. That if the jury believe, from the testimony, that the defendant has possessed the premises sued for in this action, and exercised every act of ownership over them for more than thirty years before the institution of this suit, the jury may presume that the defendant has a complete grant or legal conveyance for said premises.
    8. That if the jury believe, from the testimony, that the orphans’ court of Adams county ordered the premises to be sold in 1806-, by the administrator of Stephen Stevenson, to pay the debts of said deceased, that said sale was made in 1806, and that a deed reciting sqid sale was made by the administrator to the purchaser at said sale; they may at this time presume that citations had been issued, notices given, and all the requisitions of the law complied with, to confer by such a sale a complete title to said premises upon the purchaser.
    9. That although the personal estate of Stephen Stevenson, deceased, may not have been actually insufficient to pay his debts, yet if the court made an order for the sale of the real estate of said deceased, also to pay his debts, that circumstance does not affect the validity of the title of the purchaser, acquired by purchase of such sale of the real estate by said administrator.
    10. That if the jury believe, from the testimony, that the defendant has had adverse possession of the premises sued for twenty years or more before the institution of this suit, it is a bar to the recovery of said plaintiffs in this action, unless the jury believe, from the testimony, that infancy or coverture saved them from the operation of the statute of limitations of this state upon the subject.
    11. That unless the jury believe from the testimony that the mother of the plaintiffs and Stephen Stevenson, deceased, were lawfully married before the births of said plaintiffs, they cannot recover in this action. '
    12. That when the statute of limitations begins to run, it continues to run regardless of subsequent coverture or infancy of any of those against whose claims said statute had commenced to run.
    13. The plaintiff or plaintiffs, relying on the exception in favor of infants and femes covert contained in the statute of limitations of this state applicable to this case, must prove himself or themselves to be within the exception, or the jury are not bound to find that he or they are entitled to the benefit of such exception.
    14. That after thirty years’ possession by the defendant, under a deed from the administrator, reciting certain acts having been done which should be properly of record, with proof that such records were loosely and irregularly kept, the jury can presume that such records have once existed.
    15. That the plaintiffs in this action must recover on the strength of their title. i
    Whereupon the court gave to the jury said instructions, numbered 5, 6, 7, 8, 9, 10, 12, 13 and 15, and refused the others; to the giving of which the plaintiffs excepted.
    The plaintiffs moved the court to set aside the verdict and grant a new trial, because of the refusal of the court to give the instructions on the part of the plaintiffs, and because of the giving the instructions on behalf of the said defendant, and also because the verdict of the jury is contrary to law and evidence. But the court overruled the motion; the plaintiffs again excepted, and prosecuted this writ of error.
    
      
      G. Baker, for plaintiffs in error.
    The 1st error assigned is, that the court below permitted the deed for the land in question from Dunlop to Francis Nailor, and that from Nailor and wife to the defendant, to be read in evidence to the jury.
    It is contended that the deed from Dunlop to Nailor was void, and so was improperly admitted as evidence on the trial of the cause in the court below.
    The deed was void for two reasons:
    I. Because the decree or order of the orphans’ court for the sale of the land was a nullity.
    II. Because of the noncompliance of Dunlop, the administrator, with the directions and requisites of the statutes authorizing and regulating the sale of real estate of intestates.
    Before proceeding to notice in detail the several points arising under the error above assigned, we will state some of the general principles of law deemed applicable to this case; as the same have been recognized by the courts of the United States, and of the several states, when adjudicating upon cases similar or analogous to the one now under consideration.
    1. That the proceedings of all courts may be inquired into, so far as to ascertain whether they had jurisdiction, whenever they come either directly or collaterally in question in any other court.
    
      2. If a court act without having obtained jurisdiction of the person, or of the subject matter, its judgments are void.
    3. Every fact essential or necessary to give jurisdiction to an inferior court, or one of special limited powers, must appear upon its records, otherwise its'proceedings are coram non judice and void.
    4. That a party claiming land by virtue of an order or decree of an inferior court, and of a sale and conveyance thereof by an administrator under such order or decree, must show, by competent evidence, the existence of every fact essential to give give jurisdiction to such court, and the proper performance by such administrator, of every act required by the statute, directing and controlling him in making such sale and conveyance.
    
      1 and 2. As both the 1st and 2d of the foregoing propositions are principally sustained and illustrated by the same authorities, they will be considered together. On these points Mr. Baker cited and reviewed the following authorities. Elliott et al. v. Peirsol et al., 1 Peters, 340; Wilcox v. Jackson, 13 Peters, 511; Lessees of Hickey v. Stewart et al., 3 How. S. C. Rep. 762; Mills v. Martin, 19 J. R. 33; Sherman v. Ballou, 8 Cow. 308; Denning v. Corwin, 11 Wend. 652; Stoclcett v. Nicholson et al., Walker, R. 75; Campbell et al. v. Brown et al., 6 How. 234; Gwin et al v. McCarroll, 1 S. & M. 368; 1 Peters, 340; Hollingsworth v. Barbour, 4 Peters, 472; Borden v. Fitch, 15 J. R. 141; Bigelow v. Stearns, 19 J. R. 40; Dakin v. Hudson, 6 Cow. 225; Bloom v. Burdick, 1 Hill, 139; Shriveds Lessee v. Dynn et al., 2 How. S. C. R. 57; 3 lb. 762; Swiggart et al. v. Harber et al., 4 Scam. 371; Armstrong v. Harshaw, 1 Dev. 188; Moren v. Killbrew, 2 Yerg. 376; lb. 484; Mims v. Mims, 3 J. J. M. 105; Ferril v. Combs, 7 lb. 247; 1 How. 62, 63; Puckett et al. v. McDonald et al., 6 lb. 273; Minor v. President and Selectmen, 4 S. & M. 602; 5 S. & M. 112, 214, 600.
    3. The third proposition, it is believed, is amply sustained by the authorities as well as by principle. On this point counsel cited and reviewed Thatcher v. Powell, 6 Wheat. 125; Elliott v. Peirsol et al., 1 Peters, 340; Dakin v. Hudson, 6 Co wen, 224; Denning v. Corwin, 11 Wend. 652.
    A well known rule in pleading aptly illustrates the same principle.""
    “In pleading the judgments of courts of limited jurisdiction, it is necessary to state the facts upon which such judgment is founded.” Per Savage, Ch. J., in Wheeler v. Raymond, 8 Cow. 311. See also Foote v. Stevens, 17 Wend. 486.
    Why state such facts? Because it is necessary to prove them. How are they to be proved ? By the record alone. 1 Scam. 325 ; Shriveds Lessee v. Lynn, 2 How. S. C. Rep. 58; Brown v. Wright, 4 Yerg. 57, 66; Bloom v. Burdick, 1 Hill, 140; 3 J. J. M. 105; 14 Mass. 30; Campbell et al. v. Brown et al., 6 How. 235; Puckett et al. v. McDonald et al., Ibid. 269, 273; 
      Gwin et al. v. Me Carroll, 1 S. & M. 368 ; Wright v. Fletcher, 12 Yer. R. 434: lb. 540; Graham v. Gordon, 1 Chip. R. 115; Brown v. Wright, 4 Yerg. 66.
    4. In support of the last proposition, Mr. Baker cited and reviewed the following cases. Stead’s Ex’rs v. Course, 4 Cranch, 412, 413; Parker v. Rule’s Lessee, 9 Cranch, 67, 68; Williams v. Peyton, 4 Wheat. 79, 82; ■ Thatcher v. Powell, 6 Ibid. 119, 127; Ventress et al. v. Smith, 10 Pet. 175; 7 Mass. 488 ; Mon-, roe v. James, 4 Munf. 194; Ronkendorff v. Taylor’s Lessee, 4 Pet. 359; Bright v. Boyd, 1 Story, R. 486; Jackson v. Shepard, 7 Cow. 90; 7 Wend. 149; Wellington v. Gale, 13 Mass. 483; Williams v. Amory, 14 Ibid. 30. And to the same effect are the cases of Bloom v. Burdick, 1 Hill, 140 -142; Rea et al. v: McEachron, 13 Wend. 465.
    The old orphans’ court, a mere creature of the statute, was of special, limited jurisdiction; its authority to order the sale of real estate of intestates, was derived solely from the statute; and to render such a sale valid, all the material requisitions of the statute must have been strictly complied with. Wiley et al. v. White Sp Lesley, 2 Stewart, 333; Curtis v. Doe ex dem. et al., Breese, 100, 101; Smith v. Hileman, 1 Scam. 325 ; Monroe v. James, 4 Munf. 195, 196,
    We will now refer to the statutes of the Mississippi Territory in relation to administration sales, in force at the time the order of sale, and sale in this case' were made, and ascertain what were the requisites of said statutes, essential to give jurisdiction to the orphans’ court, and to enable the administrator to make a valid sale and conveyance of said lands. This statute may be found in Toulmin’s Dig. 275, sec. 26-31, 37.
    Now by an examination of the whole of the evidence, shown by the record of the proceedings in this cause as offered by the defendant to sustain the administration sale, we think it will clearly appear that the orphans’ court failed to take those steps essential to obtain jurisdiction of either the person or the subject matter. '
    
    Nor does it appear from the evidence that the administrator took those steps and performed those acts required by the statute in relation to such sales, which were necessary and essential to enable him to make a valid sale and conveyance of the land in question.
    We insist that the deeds were void,—
    I.Because the decree or order of the orphans’ court for the 'sale of the land was a nullity ;
    1. For want of jurisdiction of the subject matter;
    2. For want of jurisdiction of the person or party; and
    3. For uncertainty.
    1. As to the jurisdiction of the subject matter.
    If all the evidence adduced on the part of the-defendant were legal, it does not prove the existence of those facts, upon the establishment of which, alone, the jurisdiction of the orphans’ court over the subject matter attaches; to wit, the application of the personalty to the payment of the debts, and a deficiency of assets to pay all the debts of the intestate.
    It is not only necessary that these facts should have existed, but such existence should be made to appear by the records of the orphans’ court, by the means and in the manner prescribed by the statute.
    These are the appointment of at least three appraisers of the estate of the intestate, a return by them on oath of their ap-praisement of all the personal estate of deceased to them shown; and the signature and oath of the administrator thereto, in case he relies thereon as an inventory of so much of said personal estate as had come to his hands; and an exhibition under oath, to the orphans’ court, of a just and true account of said personal estate and debts, as far as he can discover the same; showing a deficiency of personal estate to pay the debts.
    By these means and in this manner alone, can these important and essential facts be made to appear upon the records of the orphans’ court; and until they are so made to appear, the court has not even the semblance of jurisdiction. Toulm. Dig. 284, sec. 26-28. These are the plain requisites of a positive statute, and no court is authorized to dispense with the observance of any of them, or to substitute others in their stead. Bright v. Boyd, 1 Story, R. 4S6, 487.
    
      Should it be contended that these omissions by the court, and this want of conformity by the administrator, with the statute, are supplied by the statement or exhibit filed by the administrator, the answer is, that such .a statement or exhibit is not such as the statute contemplates, and is therefore a nullity.
    In the first place the administrator was not authorized by law or the order of the court to make 'an appraisement; and in the second place, if he was he has not done so. He merely submitted in round numbers, what he may have conceived to be the probable value of the personal estate, unappraised as he has stated. Under no circumstances can such an exhibit be properly' regarded as a compliance with the positive provisions of the law.
    But suppose it shall be considered sufficient for the purpose of showing to the orphans’ court the amount of the personal estate, and of the debts due by the intestate; then it shows clearly, that instead of there being a deficit of personal estate, there would be a surplus left, after paying all the debts specified in said exhibit, more than equal to the whole amount of the debts so specified. A state of things very far from justifying the orphans’ court in assuming the power of ordering a sale of the lands.
    It is certain that in this case there was no necessity for selling the whole tract; for, independent of the $1500 worth of personalty reported by the administrator, it sold for considerably more than twice the amount of the debts specified. Williams et al. v. Peyton's Lessee, 4 Wheat. 79.
    2. The order of the orphans’ court was void for want of juris■diction of the person or party.
    The mode in which the orphans’ court should obtain jurisdiction of the parties, is pointed out in the twenty-eighth section of the statute.
    The records of the orphans’ court show no order authorizing the issuance of a citation, or directing the same to be set up or published; nor (admitting an order made) is there any thing in the records to show that such citation had been either issued, set up, or published at the times,' places, or in the manner prescribed by the statute. These things should appear by the records to have been done, and cannot be proved by parol. Stocket v. Nicholson, Walker, 75; Green’s Heirs v. Breckenridge’s Heirs, 4 Monroe, 541,543; Peers v. Carter's Heirs, 4 Lit. 268; Read v. Robb, 4 Yerg. 66; Elliott v. Peirsolet al., 1 Pet. 340.
    If a citation had been issued by the register of the orphans’ court, and set tip and published as required by the statute, yet it was a nullity and would give no jurisdiction, unless it had been based upon an order thereof, regularly made. Nor would a regular order appearing upon the record, directing a citation to be issued, set up and published as required by the statute, give jurisdiction of the parties, without proof by the record that the same had been set up and published as directed by the statute. Both are requisites of the law, and neither can be dispensed with. 1 Pet. 340, above cited, and Bright v. Boyd, 1 Story, R. 486; 1 How. 58, 62.
    As to the notice published on the 3d and l'Oth of November, 1805, we insist that it was improperly admitted in evidence on the trial in the court below. It was a publication made without authority from the orphans’ court, wholly unauthorized by it, and unconnected with its proceedings by any proper evidence, and, so far as they show, was the act of a total stranger.
    3. Said order of the orphans’ court is void for uncertainty.
    The order of sale (if such it may be called) is unquestionably void for the want of that reasonable certainty, required by the general law, to be observed in those summary and ex parte proceedings, by which rights are sought to be divested and transferred to others. The order is not pointed to any person by name or character; it does not authorize Dunlop, in person or as administrator, to make sale of the lands in question, or any land whatever. It does not specify the estate, either real or personal, that is to be sold. It does not show where the estate is situated, whether in Adams or any other county, or even in the territory of Mississippi. It does not show whether the real or personal estate was to be sold, or whether the whole, or a part, or both were intended.
    If it is an order for any purpose, and the word “same” has reference to the entry in relation to John Lee’s estate, then it is that Joshua Tail, administrator of John Lee, and not James Dunlop, administrator of Stephen Stevenson, deceased, make sale of all the personal property of said Stevenson, deceased. If the word “same” has reference to the entry in respect to the real property in Patrick Connelly’s case immediately preceding, it is defective; for the order in thát case is void for uncertainty. It does not specify where said real -estate is situated, what is to be done with it', whether to be sold or leased, by whom, at what time, on what terms, nor in what manner. An order of sale, uncertain and insufficient in itself, cannot be remedied by reference to, and connecting it with one, equally,' or.still more uncertain. Moore et ux. v. Cason, 1 How. 58, 62.
    II. Said deed was void because of the non-compliance of the administrator with the requisites of the statute.
    1. Said Dunlop did not give bond and security, as required by the thirty-seventh section of the statute.
    2. He did not enter into bond with sureties as required by the thirtieth section of said statute. -
    3. He did not give notice of the time and place of said sale, at, and for the time, and in the manner required by the thirty-first section of said statute.
    4. He did not set up said lands at any time or place for sale at public vendue, as required by said thirty-first section.
    5. He did not sell said land to the highest bidder upon a credit of twelve months, as required by said thirty-first section.
    6. He did not take bond from such highest bidder, with satisfactory, or any security for the amount thereof.
    
      7. He did not make report in writing of all (or any) of the proceedings thereon, to the next (or any) term of the orphans’ court, as required by the said thirty-first section.
    Here are seven distinct requisites of the statute to be observed and strictly performed by the administrator, the omission or unobservance of any one of which renders the sale void. Of their performance, there is not in the records of the orphans’ court one particle of evidence; nor is there any in the record of the proceedings in this case, except the recitals contained in the deed from Dunlop, the administrator, to Nailon These recitals, as will be shown by the highest authority, were incompetent evidence of the performance of any one of these requisites, and were, therefore, improperly admitted as such.
    On this point, Mr. Baker cited Williams et al. v. Peyton’s Lessee, 4 Wheat. 79; Stead’s Ex’rs v. Course, 4 Cranch, 412; Parker v. Rule’s Lessee, 9 Cranch, 64; Jackson v. Shepard, 7 Cow. 88. See also Jackson v. Esty, 7 Wend. 149; Green’s Heirs v. Breckenridge’s Heirs, 4 Monroe, 544; Peers v. Carter’s Heirs, 4 Lit. 270.
    But if these recitals were competent evidence, it will not be pretended that they are evidence of what is not recited.
    They do not prove that Dunlop had given either or both of the bonds with security, as required by the thirtieth and thirty-seventh sections of the statute. It does not prove that the 21st day of April, 1806, was the day mentioned in the due and timely notice, if any such were given, and that such sale was made at the place named therein. It does not prove that said lands were sold on a credit of twelve months, or that bond was taken for the amount, with satisfactory or any surety. It does not prove that he made report in writing, of all his actings in relation to said sale, to the next or any orphans’ court, after said sale. It does not prove that he gave notice of the time and place of sale, in the manner-and at the places, and for the period of time specified in said thirty-first section.
    True, he recites that he gave due and timely notice according to the order and the statute. Whether the notice so given was due and timely, and according to the statute, was a question of law, which the orphans’ court, and not the administrator, was alone competent to determine. If such recitals were competent evidence of any thing, they must have been of facts alone, and then it would have been for the court to say whether they constituted notice in contemplation of law. The law upon this point seems to be clearly settled. Wellington v. Gale, 13 Mass. 487 - 490, which refers to 2 Mass. 154, 7 lb. 388, and 9 lb. 242.
    III. We insist that the court-erred in admitting the testimony of the witnesses North and Wren, relative to the force and effect of the records of the orphans’ court, and to the manner in which the same had been kept. Also in allowing to be read to the jury the entries in Lee’s and Connelly’s estates. On this point, Mr. Baker cited and reviewed 1 Roll. Abr. 757; 1 Co. Lit. 117, b.; 2 Co. Lit. 260 a.; 3 Bl. Com. 24, 3ál; 1 Phil. Ev. 217; 1 Stark. Ev. 150; Burk's Ex'rs v. Tregg's Ex’rs, 2 Wash. R. 215, 250 ; 3 Stark. Ev. 1020; 1 Wm. Bl. R. 664; Adams v. Betz, 1 Watts, R. 426; ■ Thurston v. Slatford, 1 Salk. 2S4.
    Upon these principles of law, as applied to the facts in this case, we insist, that, as there was no proof that any record of the orphans’ court did ever exist, the loss of which might be presumed from the facts testified to by the witnesses North and Wren, said testimony was illegal and improperly admitted. The witness, North, testified that the entry on the minutes of the orphans’ court, in relation to the-matter of said Stevenson’s estate, had reference to the entries in the preceding cases of Lee’s estate, and that of Connelly, and that said entry, in connection with the preceding, constituted a record of an order of sale of the real estate of Stephen Stevenson, deceased.
    Now, whether the entry in Stevenson’s case had reference to the preceding entries or not, was a matter which the court alone was competent to determine, and that by an inspection of the record, and not from extrinsic evidence; and whether all the entries, taken together, constituted a record, and whether such record showed an order of sale of the real estate of said Stevenson, were matters of law which the court below was alone competent to decide, from an inspection of the records of the orphans’ court. If there was an ambiguity as to the force and effect of those entries, it was patent, and, by analogy, should have been determined by an inspection of the record itself.
    IY. The court ought not to have permitted the advertisements of notice, made on the 3d and 10th of November, 1805, to be read in evidence to the jury. There was no proof that an order for the issuing of citation had ever been made by the orphans’ court, nor that notice should be set up or advertised. There is nothing in the record connecting such notice and advertisement with the proceedings of the court. Without an order of the orphans’ court for citation to issue, and directing it to be set up .and advertised as the law required, such notice could be viewed in no other light than as the mere unauthorized act of a stranger,. and therefore binding on no one.,
    But even if such an order had been regularly made directing it to be issued, set up and published according to the statute, yet such two publications of notice were inadmissible as evidence, without proof that the same had been published for the space of time required in a newspaper, and had likewise been set up at the time and places, and for the space of time prescribed by the law. Such an order of court, and such notice set up and published according to law, was required, to give jurisdiction to the orphans’ court, without which its proceedings were void and affected not the heirs. However well informed of the proceedings against their lands they may have been, by having seen the publication of notice, they were not bound by, it; because t the same, so far as appeared by the record, their only proper source of information upon this point, was a nullity, being without authority of the court.
    V. The court refused to give to the jury the instructions asked for by the plaintiffs’ counsel, Nos. 5, 6, 8, 12, 13.
    1. As to the 5th asked,
    If it was necessary that an order for citation should have been made by the orphans’ court, or that citation should have been issued, or that notice of the same should have been given ; and that, these requisites or either of them should appear by the records to have been complied with; then the instruction asked for was the law, and a refusal to give it was error. 6 Wheat. 125; 1 How. 62; 6 lb. 234, 273.
    2. With regard to the 6th instruction asked for by plaintiffs, and refused, the thirtieth section of the statute is positive in requiring the administrator to give such bond as is therein specified ; and if he do not give such bond, we insist that he derives no power from the order of the court to dispose of the land. The giving of such bond is a statutory prerequisite, a condition precedent, which cannot be legally dispensed with, which must be complied with by the administrator before he pretends to execute the trust, or else his acts are wholly void. Bright v. Boyd, 1 Story, R. 486. And it should appear by the record to have been given as required. , Green’s Heirs v. Breckenridge’s Heirs, 4 Monroe, 541; Peers v. Carter’s Heirs, 4 Littell, 368.
    3. The refusal to give the 8th instruction asked for by the plaintiffs, was clearly erroneous.
    “Recitals are evidence against parties not only, but against privies in blood, in estate, and in law.” “ But such recitals are not evidence against strangers.” 3 Phil. Ev. 1235, note 869 ; 1 Green 1. Ev. § 23. The instruction asked for is couched in almost the very term used by the above writers; using, instead of the word “ strangers,” the words “ adverse claimant,” as meaning the same thing, as opposed to the terms “parties” and “ privies.”
    4. We also think the court erred in refusing to give the 12th instruction asked for by plaintiffs.
    The exception in the supposed order of sale, of the widow’s dower, was a solemn admission of record that said Stevenson, the ancestor, died leaving a widow. So, the reservation or exception of the “widow’s dower,”-in the deed of Dunlop the administrator, made under such order, is likewise a deliberate admission of the same fact. In either' case it is the admission of a fact; and whether that admission be evidenced by the entries of the orphans’ court, by the reservation or exception ■ in the deed, or by way of recital therein, parties and privies are alike concluded thereby. 3 Phil. Ev. 1235, note 864, and authorities there cited; 1 Greenl. Ev. § 23; Crane v. Morris’s Lessee, 6 Peters, 598.
    YI. The giving of the 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th and 15th instructions asked for by the defendant’s counsel is assigned for error.
    1. As to the 6th instruction asked for, we contend that it is not law, as applied to the facts of this case.
    Thirty years’ uninterrupted possession, unless it had been adverse to the plaintiffs, and to those under whom they claim, and under color of title, would not bar the plaintiffs’ right, nor justify the presumption of title in the defendant. The thirty years’ possession may have been by virtue of a lease from the plaintiffs, or their ancestor, and uninterrupted, and yet, though fully embraced within the scope of the instruction, it certainly woüld not authorize the inference or presumption of title in the defendant. The same objection, and for the same and similar reasons, exist as to the 7th instruction. Kirk et al. v. Smith, 9 Wheat. 241, 288; Ad. Ej. 50.
    2. The 8th instruction is grossly erroneous, and is opposed by every authority upon the subject of the regularity or irregularity of probate or administration sales to be found in the books. As well might it be presumed from a deed, purporting to be made by a sheriff, that he was in fact sheriff, that he had, and sold by virtue of, an execution, that he sold in pursuance thereof, that such execution emanated upon a judgment, and that such judgment had been regularly obtained. Breese, R. 100.
    3. The 9th instruction is equally erroneous. If the personal estate was sufficient to pay the debts of the intestate, there was, and could be, no ground for the jurisdiction of the orphans’ court, as such jurisdiction could only attach upon the existence of the fact of insufficiency of personal estate, properly shown upon the records of the orphans’ court; and until so made to appear, the court had no jurisdiction of the real estate, and could make no valid order affecting it. Toulinin’s Dig. 285-, sec. 27.
    4. The 11th instruction is directly opposed to the 18th section of the statute relating to the subject, (Toulm. Dig. 280, sec. 18,) which provides, “that where a man, having by a woman a child or children, shall afterwards intermarry with such woman, such child or children, if acknowledged by him, shall be thereby legitimated.”
    On the point of the statute of limitations, Mr. Baker made these points.
    VII. The twenty years’ possession by the defendant to be available to him, must have been adversary to the right of the plaintiffs, and those under whom they claimed. Kirk et al. v. Smith, ex dem., 9 Wheat. 288.
    Every statute of limitations being in restraint of right, must be construed strictly. Pease v. Howard, 14 J. R. 480.
    
      To constitute an adverse possession, there must be possession under color and claim of title. It has never been considered as necessary to constitute an adverse possession, that there should be a rightful title. 9 J. R. 179, 180. Same point, 18 lb. 40; lb. 355; 3 Johns. Cas. 124; 13 J. R. 118 ; 5 Cow. 92; lb-350; 1 lb. 609; lb. 285; 1 Hopk. 448 ; 3 Johns. Cas. 115-117; 6 Cow. 680.
    Several years’ possession, without "color of title, is not sufficient to bar the plaintiff in ejectment. Stanly v. Turner, Cam. & Nor. Rep. 533; 2 Hayw. 336; lb; 134; 2 N. Car. L. Rep. 399; 1 Murphy, R. 14; 3 lb. 166.
    Adverse possession is a possession under color and claim ■ of title. 9 J. R. 179, 180 ; 3 Conn. R. 403.
    The statute of limitations ripens no possession into title, which is unaccompanied with color of title. 2 Hayw. 114; lb. 104 ; lb. 69; lb. 57; lb. 134;. 1 Wheat. 480 ; 1 Har. & M’Hen. 151; 2 Hayw. 34. '
    No act or deed, which is void, can be the foundation of an adverse possession, for it can give no color of title. Pet. Rep. 241, 242. A sheriff’s deed, which is void, for want of jurisdiction in the court under whose judgment the sale took place, is not such a conveyance as that a possession under it will be protected by the statute of limitations. 9 Wheat. 541; Pray v. Pierce, 7 Mass. 383; Pet. Rep; 241, 242.
    A title, void in itself, will prevent him, in whose favor it was executed, from pleading prescription. 11 Martin, R. 715 ; 4 lb. (N. S.) 224; 3 Ib. (N. S.) 462.
    Prescription against minors runs only against them for those acts where the forms of law have been pursued in the alienation of their property. 1 Mart. Rep. (N. S.) 324.
    A grant of administration, which was originally void, and not merely voidable, can acquire no validity from an acquiescence of twenty years, or any longer period. And tenants who held under a conveyance from the administrator, executed upon a sale made twenty-six years before, the trial, in pursuance of a license from the court, to sell the whole real estate of the intestate to pay his debts, could not set up such conveyance, and their possession under it in bar of the demandant’s action. Nor can lapse of time render an act valid, which was originally void. Holyoke v. Haskins, 5 Pick. 20, 27.
    An adverse possession must be hostile in its inception; must be marked by definite boundaries; must be an actual occupancy, positive, notorious, uninterrupted, and continued, for the space of time required by the statute of limitations to toll the right of entry. Adams, Ej. (see Append.) 485.
    That adverse possession may be a bar, strict proof is required that 'it was hostile in its inception, and had continued so for twenty years. 1 J. R. 156; 2 Bibb, 507; 1 Marsh. (Ky.) Rep. 62.
    VIII. As to the proof of marriage. Marriage and pedigree may be proved by general reputation. .Adams, Ej. 286; 1 Stark. Ev. 55, 59; 2 Stark. Ev. 224, 939.
    Declarations of deceased persons are admissible to prove the fact of their own marriage, and the time of the births of their children; though such declarations are inadmissible to bastardize such children. 8 East, 195; Adams, Ej. 284. Marriage may be proved by reputation, although the parties whose marriage is disputed, be both living. Adams, Ej. 288; 4 Bing. 266.
    MMurran, for defendant in error.
    The defendants in error rely on the following grounds for the affirmance of the judgment of the court below.
    1. The illegitimacy of the plaintiffs. The only proof of a marriage of the reputed father, Stephen Stevenson, and the mother, is the testimony of Joseph Stevenson, one of the alleged heirs. According to his own testimony, he was only seven or eight years old when he alleges the marriage took place; he was not old enough to know or recollect such an occurrence. The other witness, Fletcher, came to the state twelve or thirteen years after Stevenson’s death, and of course what he then heard is no proof of the alleged marriage. On the other hand, it is proved positively by Mrs. Bradalbane, and corroborated by Cason’s testimony, that the reputed father and mother of those children were never married. The jury were right in finding the verdict they did, on this ground alone. At that early day, too, tve had no statute legitimating bastard children by the subsequent marriage of the mother and reputed father.
    2. But admitting the legitimacy .of the children, and at least six out of the nine children are barred by the statute of limitations, as will distinctly appear by .the synopsis exhibited to the court, made during the progress of the trial in the court below. The statute of limitations has been so favorably viewed, of late years especially, by all courts of justice, that any remarks in favor of it -would be superfluous. 3 How. Rep. 276, 296; 10 Wheat. R. 152; 7 lb. 59; 6 Pet.R. 61; 9 Cow. R. 530.
    Dr. McReary, according to the proof, was in the uninterrupted possession of the property for at least thirty-four years before the institution of this suit.
    3. Independently of these views, we show a legal title to the property, by the sale of Dunlop, administrator of Stevenson, under an order of the orphans’ court of Adams county, in 1806. The order of sale is not as full as it might be, but being on the regular records of the court, and in connection with the -proof of Wren and North, showing the condition of the records of that day, it is a valid order. There is a return on oath by the administrator, of the insufficiency of the personal estate, proof of citations to all interested, by publication, and the order or decree in conformity therewith. Then the deed of the administrator to Dr. McReary’s vendor, Nailor, reciting the representation of insolvency, the order of sale, the notice, the public sale, and the' purchase by Nailor, for $1550. The proceeding for the sale was a proceeding in rem, and the representation of insolvency gave the orphans’ court jurisdiction of the subject matter. And the recitals in the deed, connected with Dr. McReary’s uninterrupted possession of the property for thirty-four years before the institution of this suit, and with .his bona Jide purchase for a valuable consideration, are sufficient evidence of the facts recited in absence of all other proof.
    The authorities in support.of these positions are abundant; 2 How. U. S. C. Rep. 319; 11 Serg. & R. 426 ; 2 Pet. R. 156; 3 lb. 205; 10 lb. 473; 2 Term. R.'77; 4 Wend. R. 440; 11 Mass. R. 227; 3 lb. 399; 14 lb. 145 ; 10 lb. 105; 10 John. R. 475 ; 4 Wend. R. 440; 11 John. R. 513; 13 Mass. R. 367; 19 John. R. 345.
    
      We invoke another principle, growing out of the doctrine of presumptions in favor of long continued possession of property, without any adverse claim, which places the right and possession of Dr. MeReary beyond attack. In the language of this court, in the case of Gratid Gulf Bank v. Bryan, 8 S. & M. 279, in favor of long continued possession, “ almost every variety of written evidence of title will be presumed.” “All presumptions are in favor of the possessor; none against him.” In the language of Peake’s valuable Treatise on Evidence: “Long and undisputed possession of any right or property affords-a presumption that it had a legal foundation, and rather than to disturb men’s possession, even records have been presumed.” Norris’s Peake, 45, 46; 12 Co. 5; 3D. & E. 152; 1 Cowp. R. 217; 7 Wend. R. 62; 4 D. & E. 372; 4 N. Hamp. R. 351.
    And there is no exception to the application of this doctrine of presumptions, in favor of the long enjoyment of any property, real or personal. A grant from the king or government will be presumed after great length of time ; so, femes covert and infants come within its operation, equally with adults.
    Time, time alone, then, has conferred on Dr. MeReary a perfect title to the property. The law, on the record in this case, presumes a grant from the government, or a conveyance from the plaintiff’s ancestor, to him, even if the plaintiffs had established their legitimacy, and had shown the administrator’s sale to be a nullity, and themselves exempted from the operation of the statute of limitations.
   Mr. Chief Justice Shahkey

delivered the opinion of the court.

This action of ejectment was instituted in the circuit court of Adams county, on the 28th of February, 1840, and at May term, 1843, a trial was had, which resulted in a verdict for the defendant. The case is brought up by the plaintiffs, on exceptions taken to the rulings of the court. The plaintiffs claim title as the heirs of Stephen Stevenson, to whom the land was granted by the Spanish government by patent, bearing date the 15th of March, 1789, on which he received a certificate of confirmation by tire United States commissioners. It appears that Stevenson resided on the land up to the period of his death, which occurred in 1804. The defendant claims title by virtue of a sale made by the administrator on Stevenson’s estate, in 1806. The whole case turns upon the evidences of the regularity of that sale. If the administrator proceeded to sell, according to law, which authorized him to sell real estate for the payment of debts in a particular manner, then, of course, there is an end of the controversy. But it is said that his sale was void and passed no title, inasmuch as the law was not pursued, and the several points raised on the trial seem to centre mainly in an inquiry into the regularity observed by the administrator in making this sale. The position is taken, that in sales of this description the administrator must comply strictly with every requirement of the law, that the probate courts cannot order a sale, unless every thing necessary to give them jurisdiction of the person, and of the subject matter, appears upon their records. Many authorities are cited in support of this position unnecessarily; its general correctness we do not doubt; the principle is no where more rigidly enforced than by our own decisions. We certainly have not relaxed in any degree from the most rigid rule. But admitting this to be the general course of decision, is it fully applicable in the present case? It is of course, unless there be counteracting principles which overcome it. It is presented to us as a question depending on the legal strength of proof. The defendants have an apparent title, but it is said that the administrator had no power to make it., because the proper preliminary steps were not taken. This objection is met by an assertion, that all preliminary steps were taken; that enough appears of record to justify us in holding, that the law was complied with.

The doctrine of presumption, arising from lapse of time, has been pressed as sufficient to overcome whatever may seem to have been omitted by the administrator in the discharge of his duty, and it is entitled to great force; sufficient, indeed, as it seems to us, to obviate most of the objections raised, and we shall first consider of this doctrine, before we proceed to notice the several objections raised, as their force will be then best understood.

From the dates given, it will be seen that we must have many difficulties to encounter in the process,of investigation. Here are many plaintiffs, mostly standing in the third generation from the ancestor under whom they claim, seeking to recover of a defendant who had been in possession under title adverse, for about thirty-four years before the commencement of the suit. Events are brought-up, which occurred in the early dawn of our territorial history. The legislative history is so imperfect, that the archives of state furnish but a meagre, broken outline of it, and the judicial history is equally destitute of accuracy and precision. In 1798, an imperfect territorial government was first organized. The legislative power was exercised by the governor and judges. In 1800, congress provided for a legislative body, to consist of nine representatives, to be elected by the people of the three counties, which then comprised the settled part of the territory. We know that the legislation was imperfect' in character, and limited to the wants of the few inhabitants that then occupied the territory, and we know also that even until within a late period, judicial proceedings, and especially those of the probate courts, were conducted with but little regard to exactness. The judges of probate were probably not generally lawyers. They acted without any uniform system fixed by construction of the statutes from Which their powers were derived. Under the circumstances, we could not expect the utmost regularity in their proceedings. Even at the present day, under the same statutes which then existed, we find many defects in the judgments and proceedings of the probate courts. We must therefore make the greatest allowance, after the great lapse of time, for apparent omissions and discrepancies. There seems to be then, a fair field for the application of the doctrine of presumption to the present case. What is the effect of its application I It seems to be this : When the plaintiffs prove title in the ancestor, and heirship, their case is prima facie made out. To rebut this, the defendant introduces a deed from the administrator of the ancestor, and proves that some of the requisite steps are taken to enable the administrator to sell. But in ordinary cases this would not do; the defendant must prove affirmatively, by the records of the probate court, that all preliminary steps were regularly taken. As a substitute for the broken links in the chain of title, the defendant relies upon his long uninterrupted adverse possession, as sufficient to justify the presumption, in connection with his deed, and the other evidences, that his title in its inception was perfect; that the power of the administrator was duly exercised, and that the plaintiffs had virtually acknowledged his goodness of title by their long acquiescence. We have, then, the legal presumption in favor of the defendant, to rebut the •prima facie case of the plaintiffs. On this state of the case, the defendant must have the advantage, unless the legal presumption cán be repelled. The burden of proof seems to be thrown back upon the plaintiffs, for they must recover on a title paramount to that of the defendant. If this be so, then it is incumbent on them to prove that the administrator did not sell according to law, for unless they do this, the law, on the state of facts, presumes that he did. If they could make such showing, then, of course, the presumption yields, but nothing of the kind has been attempted in this case. Now we shall see how far the authorities go in sustaining counsel in this doctrine of presumption.

The case of Gray v. Gardner, 3 Mass. Rep. 399, seems to be directly in point. A sale of land had been made by an administrator. A lapse of twenty years, with proof that the probate offi.ce had been kept in a loose and careless manner, was held sufficient to justify the presumption, that the administrator had posted up the requisite notices, and had also taken the necessary oath preceding the sale. It was held to be necessary to a valid sale, that the administrator should have posted up the notices and taken the oath, and yet the court said that it might be presumed that he had done so. This case also decides, that the recitals in a deed of that age might be received to aid the presumption.

The decision in Knox v. Jenks, 7 Mass. Rep. 488, rests upon the same principle. The court say: “ The rights of persons thus connected with the estate conveyed, and whose interests are affected by the authority to sell, are regarded by these provisions, and they, and any claiming under them, are not concluded by the exercise of the authority and license to sell in derogation of their rights, unless every essential requisite and direction of the law in this respect has been fully complied with. But even heirs and creditors are concluded after a long acquiescence; and a legal presumption of the regular exercise of the authority is accepted instead of proof.”

So after a lapse of thirty years, numerous defects in a tax collector’s sale were supplied by presumption. Colman v. Anderson, 10 Mass. Rep. 105; Pejepscut Proprietors v. Ransom, 14 Ib. 145. If such presumptions will supply the place of proof, with regard to sales made by the tax collectors, surely they should do so in the case of administrators; the former sell by a naked statute power; the latter under a decree of a court of competent jurisdiction.

In Hazard v. Martin, 2 Term. Rep. 84, the plaintiff claimed by an administrator’s deed, but there was no record of an order of sale, or any record showing that such order ever had been made by the probate court. Amongst the loose papers of the office was found this memorandum : “ Dec. 22, 1792, judgment of court, estate insolvent, and administrators ordered to sell the real estate.” This was deemed sufficient, in connection with possession for thirty years and the deed, to justify a presumption, that the administrator had proceeded regularly. It is insisted by the opposite counsel, in commenting on this case, that it does not appear from the opinion of the court that an order was necessary to enable the administrator to sell; the court does not say so, though perhaps the opinion might warrant the inference. But it is admitted that insolvency was necessary before sale could be made. Then, we may ask, where was the judgment of insolvency, or the evidences of it? It is found in the loose memorandum above extracted. Vague as it is, it was held sufficient foundation for all presumptions. The case is a very strong one in support of our position.

The language of Judge Archer in Beall v. Lynn, 6 Har. & Johns. 361, is worthy of being extracted at some length. “Presumption is often resorted to for the purpose of supplying defective evidence; and, in this country, it is not oftener applied to any subject than to supply defective title to lands. It would be difficult' to make out the titles to many of the elder tracts of land in this state, by a regular deduction of title deeds from the patentees down to the present proprietors, without resorting, in some stage of them, to presumption. Records may sometimes be lost or destroyed; and ancient title papers may be defectively executed, or the prooof of them, from lapse of time, may be impossible. Yet in all these cases, the possession may have been invariably in the person claiming the land, and in those from whom he derives title. In such cases, possession which has been long undisturbed, and which is, in general, the concomitant of title, induces a belief in the mind, of title, little short of that which would be produced by the adduction of the most undeniable and best authenticated evidences of right.” In accordance with this language, the court presumed title, where one of the mesne conveyances, between the patentee and the holder of the land, was missing, on the strength of the lapse of time and the recitals in one of the deeds subsequent to the missing conveyance. The same court, on one occasion, held, that from a void deed, in connection with long possession, a valid conveyance might be presumed. Gettings v. Hall, 1 Har. & Johns. 14.

After twenty-three years’ possession under a deed made by attorney, the power of attorney was presumed. 6 Martin’s Louis. Rep. 153, N. S. The same point has been decided in other cases, and they furnish strong authorities in the present case, as both an attorney and an administrator convey by a power conferred, and it is as fair to presume the existence of the power in the one case as in the other. Indeed, the grant of administration is a circumstance in aid of such presumption, and gives a better ground for it than is to be found in the case of an attorney.

In New York the same principle seems to have been uniformly recognized. In favor of long possession conveyances are presumed, and those made by attorney are sustained without proof of the authority; and recitals in old deeds are received as prima facie evidence. Jackson v. Lunn, 3 Johns. Cas. 117; McDonald v. McCall, 10 Johns. R. 377; Ib. 475; Schuyler v. Russell, 4 Wend. 543.

A leading case in England is found in Earl ex dem. Goodwin v. Baxter, 2 Black. Rep. The plaintiff sued in ejectment, claiming as assignee of an old term for one thousand years. Several assignments had been made prior to that under which plaintiff claimed, but he was able to prove only one of them. The others were presumed from his long possession. And it is now the settled doctrine there that grants, even as against the king, will be presumed, rather than disturb long possession; for it is truly said that otherwise ancient possession would injure, rather than strengthen a title. See 1 Phil. Evid. 161. But why multiply authorities, when the rule is so universally admitted"? The decided cases will be found collected in note 311, 2 Phil. Evid., and in the argument for the appellant in Grand Gulf Bank v. Bryan, 8 S. & M. 256, where the same doctrine was discussed by counsel, and fully recognized by this court. The reasons on which this rule of law is founded are too obvious to require much comment. Laws and judicial tribunals are established for defining and settling rights, so that order and tranquillity may prevail in the community. The policy of the law favors the repose of society, and hence it makes due allowances for the frailties of human memorials, and the difficulties in establishing perpetual evidences of the transactions of men. When so long a time has elapsed that certainty in the proof of events cannot be expected, it receives as a substitute that which is less certain in order to protect apparent right. A contrary policy is not to be tolerated. It would convert the law into an engine to work incalculable mischief. Instead of giving repose to society, it would be the means of promoting contention and strife which would often terminate in injustice.

Let us, in the next place, see whether the defects in the defendant’s title are such as are cured by the doctrine of presumption. The preliminary steps to be taken by an administrator in making sale of real estate, at the time this sale was made, are pointed out by the statute as follows, to wit:

1. When the personal estate was discovered to be insufficient to pay the debts, he was required to return on oath an inventory of the estate and debts, as far as he could discover the same, to the orphans’ court or chief justice, and report the insufficiency of the personalty.

2. The court or chief justice was then to cause citations to issue, requiring persons interested to show cause why the land should not be sold; which citations were to be put up at three of the most public places in the county for thirty days, and to be published for the same length,of time in a newspaper.

3. At the time specified, or subsequently, the court was-to hear the allegations and proofs, and if necessary, to make an order for the sale of the land.

4. Before the administrator obtained the order from the clerk’s office, he was required to give bond that he would follow the directions of the law in making the sale, and faithfully account for the proceeds.

5. To the foregoing may be added the duties of the administrator in conducting the sale. He was to give notice of the time and place of sale, by advertising the same at three of the most public places in the county for forty days, and publish the same for three weeks in some newspaper published in the territory ; he was to sell at public vendue to the highest bidder on a credit of twelve months; he was to take bond and security for the purchase money, and was moreover required to make a written report of his proceedings to the orphans’ court.

6. He was, lastly, to make a deed to the purchaser.

Let us now see how far the defendant falls short in proving a strict compliance with the foregoing requisites. The first was substantially complied with. It is admitted that James Dunlop was duly appointed administrator, and at the July term, 1805, he returned an inventory, called an exhibit of the personal estate and debts due by Stephen Stevenson, deceased. The particular property was not specified, but the aggregate amount of value was pot down at $1500. Certain debts were specified, but it is stated in the report that there were also a number of other claims against the estate, some unliquidated and some in suit, and that the estate was insolvent. This report was sworn to by the administrator. It cannot now be impeached collaterally, because it was not sufficiently explicit. It was deemed sufficient by the court.

We next find two citations which seem to conform to the requisites of the law, advertised in two numbers of a newspaper then published in Natchez, the first number issued on the 3d, and the second on the 10th of December, 1805. The citation is dated 3d December, 1805, and signed by the clerk officially. There is proof in the record that these two papers were the last in the volume. This proof was surely sufficient to show a compliance with the law, so far as it required the cita-, tions to be published in a newspaper, as but the two papers are to be found; but there is no proof that the citations were put up at three of the most public places in the county, and this is the first defect.

In the next place, we find that the records of the orphans’ ■ court show an order of sale in this way; the rough minutes of the court, as this evidently was, contains several entries, the subsequent referring to the precedent, viz: “Afterwards, to wit, at the January term of said orphans’ court, A. D. one thousand, eight hundred and six, it was ordered by said orphans’ court of Adams county that Joshua Vail, Administrator of John Lee, make sale of all the personal property of said Lee, deceased;

That the real property of Patrick Connelly, deceased, except the widow’s dower.
“ The same order respecting the estate of Stephen Stevenson, deceased.”

These several orders follow each other on the minutes, and though imperfect in form, are yet sufficiently intelligible to be understood, even without explanation. They are better than the order of sale which was sustained in the case of Hazard v. Martin. That was on a loose piece of paper, and not more certain; these are of record. But in aid of this order, the present clerk of the court was examined, and testified that the book in which this order was found was the oldest book of records in the office. He was well acquainted with the records of the office ; that at the date of said order, the papers and records were kept very loosely, and the orders were frequently very imperfect, put down frequently in short, and could not be understood without reference to a preceding order. Dr. Wren, who was also clerk in 1818, and acquainted with the records of the office, testifies that he found them in a very loose and disordered condition, many things unrecorded which should have been placed on record; that, from the negligence of his predecessors, many of the records may have been lost. He also stated that he knew the clerk who made this entry; that he was a man of intemperate habits, and loose, in his office business. It is insisted that the testimony of North and Wren should have been excluded; we do not think so. Nothing is more common than to prove by parol the condition of the records of an office, and the manner in which they have been kept. Such proof was admitted in several of the cases already cited, and we held evidence of this character admissible in the case of Pagaud v. The State, 5 S. & M. 497, and probably have done so in other cases. It is not converting parol proof into record evidence, but it is a means of accounting for that which is missing. It is introdued to show the probability of a loss of record evidence. With this testimony we can have no difficulty in saying that the order of sale is sufficiently established. Indeed, we should probably have come to the same conclusion from the face of the record, without the explanatory proof. This book was evidently a rough minute of the proceedings, and from it a more perfect record should have been made out; but if it was ever done, it has been lost.

There is no proof that the administrator gave the bond required by law, or that he gave notice of the time and place of sale. Some of the witnesses speak of a sale of the land made by Dunlop, but whether.it was sold for cash or on a credit does not appear. There is no proof that he made a written report to the orphans’ court; but he made a deed to the purchaser, which is very full in reciting the title, seizen and death of Stevenson; the appointment of Dunlop as_ administrator; the insufficiency of the personal estate to pay the debts; the report of insolvency ; the order of court to sell the tract of land; the giving of due and timely notice of the sale according to the directions of the statute; and the actual sale at public vendue to the highest bidder.

Up to the time the administrator was invested with power to sell by the order of court, we find but one deficiency in the proof, that is the absence of any evidence that the citations were posted up at three public places in the county. That was a matter in pais. There was no way of putting proof of a compliance in this particular upon record, except by taking the depositions of witnesses and having them recorded. The law did not require this to be done. There was no way provided by law for perpetuating evidence of a compliance with this requisition. After the lapse of thirty-four years, it would be too much to require of a party to prove that the law had been complied with in this particular. In the nature of things, such proof becomes next to impossible after so great a lapse of time, and the law does not require impossibilities. This is t.he only deficiency the law of presumption is called on to supply prior to the existence of a perfect right to sell according to the ceremonies to be observed by the administrator in conducting the sale. We have been strict in our decisions, in holding that every thing necessary to give the court jurisdiction of the subject matter and of the person must appear on the record, but we have not yet held that the subsequent irregularities of the administrator in making the sale, having a valid order for that purpose, are to be visited by the same consequences. On analogy to other sales under judgments, perhaps we should not be authorized in going so far. A bona fide purchaser at sheriff’s sale looks to the validity of the judgment; he must know that the court had jurisdiction of the subject matter and of the person; he is not affected by the irregularities of the sheriff in making the sale. An administrator sells under a power derived from the judgment.- The law favors the defective execution of a power, but it cannot cure a defective, power. But admitting, for the present, that it was necessary for the administrator to pursue the statute strictly, and that there is no record proof that he gave the required bond, that he gave the requisite notice of the time and place of sale, or that he made the report of sale to the court, still we think that the authorities abundantly show that, under the circumstances, the law will presume that these several conditions were complied with. But the recitals in the deed show a full compliance, and they are entitled to some weight; they have been held in similar cases to be prima facie evidence. If we are so to regard them, then there is no defect in the proof; it establishes a complete title.

Having thus stated the principles, and having also shown the several defects in the proof to be supplied by them, it will be an easy matter to test the rulings of the court on the trial. We pass over the first, second, and third errors assigned. They question the admission of the deeds, the testimony of North and Wren, and the advertisements from the newspaper.

The fourth error assigned is, that the court refused to give the 5th, 6th, 8th, 12th and 13th instructions, asked for by the plaintiffs’ counsel. The first instruction refused is in substance this, that it must appear by the records of the court that citation was issued to the heirs of Stevenson to show cause why the land should be sold, or the order of sale is void. Admit that in a case differently situated this charge should have been given, we have shown why it should not have been given in the present case, and charges must always be applicable to the state of case before the court. The law .is, that after a great lapse of time, this strict proof may be dispensed with; its place may be supplied by presumption. To have given this charge would have been to exclude the legal presumption, and the possibility of supplying the place of lost.records. From such a charge the jury would have been bound to conclude that the record must show every thing, and that no secondary proof could be received.

The second charge refused is, that it must appear by the record that the administrator gave the bond required before he obtained the order of sale, or such order of sale is without authority. This admits of the same remarks that were made as to the first; but it also admits of this further answer. . The order of sale preceded the giving of the bond, and the failure of the administrator to give bond could not vitiate a valid order, even if it would vitiate his salé. And, moreover, the statute makes no provision for recording the bond; how then should it appear of record ? And why not as well presume that he had given bond, as to presume that he had taken an oath, which we have seen may be done.

The third charge refused is, that the reservation of the widow’s dower in the order of sale, and in the deed from the administrator to the purchaser, is evidence that Stevenson left a widow, and estops the defendant from denying the same. If the widow were a party to this controversy, the force of this position might be more apparent. If it were intended to justify the presumption of the legitimacy of the children, its pertinency is not perceived, as it would not prove their legitimacy. It may have been that Stevenson left a widow, and still a part of the plaintiffs may be illegitimate. It would not follow necessarily that any of them were legitimate. We have found no law which, at that day, made the children legitimate by the subsequent marriage of the mother and reputed father. The charge then seems to have propounded but an abstract proposition, as it is wholly immaterial to the merits of this controversy whether Stevenson left a widow or not.

The last charge refused is, that cohabitation and acknowledgment are legal evidences of marriage, and if the jury believe, from the evidence, that Stephen and Mary Stevenson cohabited and held themselves out as man and wife, and raised and provided for a large family of children, which they acknowledged and held out to the world as their children, they must find for the plaintiffs. This was asking the court to weigh the evidence. The court might have charged the jury, as it after-wards did, that such circumstances would justify them in presuming a marriage, but such proof could not, under all circumstances, justify a verdict for the plaintiff. It must be recollected that there was rebutting testimony on this subject; and although cohabitation, &c. may’ have been proved, yet the rebutting proof may have been sufficient to show that it was an illegal cohabitation. Cohabitation, and holding themselves out to the public as man and wife, furnished but presumptive evidence of marriage. The charge was too strong; it left no room for the jury to determine on the weight of evidence. The weight of evidence may have been against the actual marriage, but by giving the charge the court would have cut out all rebutting proof, by directing the jury that under proof of cohabitation, &c., they must find for the plaintiffs, notwithstanding the proof that no marriage was solemnized.

Several of the charges given at the instance of the defendant were objected to. The most of them may be resolved into this proposition: that in connection with his long possession, the defendant had proven enough to justify the jury in presuming that all necessary steps had been taken to enable the administrator to make a valid sale. The truth of the proposition, we trust, has been sufficiently shown, and we shall therefore omit to notice each charge particularly.

Certain other charges given will receive a passing notice; [ to wit, that by the warranty in the deed the defendant was not estopped from controverting the fact of the marriage of Stephen and Mary Stevenson, nor from questioning the legitimacy of the plaintiffs. The warranty is general, “excepting only the widow’s right of dower.” In this controversy we do not see how this exception in the deed is to estop the defendant from disproving the marriage, and certainly it does not estop him from disproving the legitimacy of the plaintiffs.' The exception has no connection with their legitimacy. If it was now a question as to the widow’s right of dower, the exception might be entitled to great force. We need not now say what weight it might be entitled to. This is not a recital in the deed, but an exception. Recitals in deeds sometimes operate as estoppels, but none but privies and parties shall have advantage of them. They depend upon the same principles that the admissions of a party do. Recitals only estop the party making them, and those claiming under him, but estoppels must be mutual. The plaintiffs deny that they are bound by any thing in this deed. Their legitimacy is not recited, and the defendant cannot be precluded from disproving it.

Most of the plaintiffs are obviously barred by the statute of limitations, and certain charges given on that subject were excepted to, which were, in substance, that if the defendant had held twenty years’ adverse possession, the plaintiffs were barred, unless they were saved by infancy or coverture; that when the statute begins to run, it continues to do so, and if the plaintiffs rely on the exceptions in favor of infants or femes covert, they must show that they are entitled to the benefits of the exceptions. To these charges we see no objection.

On the motion for a new trial, we need only remark that we do not think the verdict was contrary to law or the evidence, but in strict accordance with both.

The laborious investigation which this case received from counsel has induced us to give our views on the prominent points more at length than we should have otherwise deemed it necessary to do. We have bestowed upon it due deliberation, and the result is that we think that the court, from the facts proven, was correct in its charges, and that enough was before the jury to authorize them to indulge every presumption in favor of the defendant’s title.

Judgment affirmed.  