
    Osborne R. Eakin et al. vs. John Doe ex dem. Samuel B. Vance et al.
    In case of a lost or destroyed record, parol evidence is admissible of its contents, especially where no higher e’vidence is shown to exist.
    Therefore, in an action of ejectment, where the defendant relied on a purchase at administrator’s sale, of the premises in controversy, it is competent for him to show by the clerk of the probate court, that citations had been regularly issued for those interested in the premises, as the statute requires, hut that they had been lost or mislaid.
    If, however, the record of the court be not lost, it is not competent to prove by parol that an order of sale was made by the court; such order, if made, should have been placed upon the record ; if there, it could not be proved by parol, if not there, parol proof could not supply it.
    Where, therefore, in an action of ejectment the defendant, relied on a purchase at administrator’s sale of the property, and offered to prove, by parol, that citations had regularly issued according to the statute, but had since been’lost, and also that an order of sale of the premises had been made by the court, and the circuit court refused to permit the proof of either to be made, and the jury found for the plaintiff; held, that although the court below should have permitted the proof of the loss of the citations, yet as that proof would not have availed the defendant, without the order for the sale, which could not be established by parol, the judgment must be affirmed.
    On appeal from the circuit court of Holmes county; Hon. Morgan L. Fitch, judge.
    John Doe, on the demise of Samuel B. Vance and others, heirs of David W. Vance, deceased, sued Osborn R. Eakin and Reuben Matthews, in ejectment, for a tract of land,in Holmes county. A trial was had and verdict rendered for plaintiffs.
    On the trial, the plaintiffs proved a title in their ancestor, and possession in the defendants. The latter then proved, by the records of the probate court of Holmes county, that John W. Myers was duly appointed administrator of David'W. Vance’s estate, in October, 1833. They read the entire record of the proceedings of Myers in his -administration, from which it appeared, that at the May term, 1834, Myers suggested that Vance’s personal property would not pay his debts, upon which the court ordered citation, for those interested in the realty, to appear at the July term, and show cause why the land should not be sold.
    At the July term, it was ordered, that those interested in the lands should appear at the September term, and show cause, if they could, against the sale. At the August term, a similar order was made for them to appear at the October term of the same year. At the September term, a similar order was made for them to appear at the November term, in which the land, in controversy, was specifically mentioned.
    The record shows no further proceedings, until the March term, 1835, when the following entry appears.
    “An account of the sale of the real estate, belonging to David W. Vance, deceased, sold under an order of the probate court of Holmes county, on the 18th day of March, 1835, according to the statute in such case made and provided; to wit: (Here follows account of sales.)
    “I do certify, that the foregoing contains a true and full ■account of the sale of the real estate of David W. Vance, de-■eeased, sold by me under an order of the probate court of Holmes county, on the 18th day of March, 1835.
    John W. Myers,
    
    
      Administrator of David W. Vance, deceased.
    
    “Received and ordered for record.
    N. E. Rives.”
    This was all the record of the probate court touching the sale of the land.
    The defendant then offered to prove, by W. A. Purdom, who at the time the order of sale was obtained, was acting as clerk in the probate clerk’s office; that citation was legally issued to all persons interested in the land; that the same was returned ■executed, and an order of sale of the land thereupon granted by the probate court; that these several orders, citations, &c., have been lost or mislaid, also that the land was duly advertised and sold by the administrator. This proof was excluded by the ■court. The defendant excepted and appealed.
    
      
      W. JR. Miles, for appellant.
    If a record be lost, it can only be supplied by parol; there is no other conceivable manner in which it can be done. To decide that it cannot be so done, will be to encourage those whose titles are defective, to destroy the record evidences of title in their adversary, and they are safe.
    
      W. Brooke, for appellee.
    The records of the country would cease tobe “muniments of title” if they could be altered, abridged or enlarged by the recollections of their keepers. In. this case, not only was it proposed to establish the records, but also legal inferences, as that the citations were duly issued, duly served, <fcc.
   Mr. Chief Justice Shaeeey

delivered the opinion of the court.

This was an action of ejectment. The plaintiffs in the circuit court established a perfect legal title in their ancestor, their heir-ship, and possession of the defendant.

The defendants relied on a title derived from Vance’s administrator, but the record of the probate court did not show that citations to persons interested in the real estate of Vance, hpd been issued as the statute requires, and, thereupon, the former clerk of the court was offered as a witness to prove that citation was legally issued to all persons interested, and returned exe-* cuted, and an order of sale was thereupon made by the court. That the several orders, citations, &c., have been lost or mislaid. This testimony was excluded, and this decision of the court constitutes the only question in the case.

Whether it is competent thus to admit parol evidence, to supply the place of a matter of record, which has been lost, is a question not free from difficulty. The weight of authority seems to be in favor of its admissibility. Many cases on this subject are cited in note 723, 3 Phillip’s Evidence, 1067. The rule deduced from them by the annotators is, that generally, in case of a lost or destroyed record, parol evidence is admissible of its contents, especially when no higher evidence is shown to' exist. In 1 Greenleaf’s Evidence, 581, the rule is laid down in terms equally broad. These learned writers have cited very much the same adjudged cases. By some of them they are sustained; by others they are not, to the full extent of the rule. Following, then, the rule thus established, we are inclined to hold, that parol proof of the issuance and due service of citations was admissible, in connection with clear proof of loss, under circumstances not implicating the party claiming the benefit of such testimony, in being instrumental in the loss.

But the defendants also offered to prove, by the witness, that an order for the sale of the land was granted by the probate court. If any such order was made, it should have been placed on record, and there is no pretence that the records of the court have been lost, other than the citations. Indeed, it does not appear, that such order was not placed on record. If it was, it could not be proved by parol, unless the record containing it had been lost. If it was not, it cannot be supplied by parol proof. That would be to substitute parol proof in lieu of record evidence, and to dispense with so much of the law as requires the proceedings of the probate courts to be recorded; to substitute witnesses for judgments.

The proof of the issuance of the citations would have availed nothing, without proof of the order of sale, and as this could not be made, the defendant’s case could not be made out; under this state of things, no other judgment could have been given than for the plaintiff.

Judgment affirmed.  