Root et al. v. Mc Ferria. but did not pay any attention to the business of the court at that time, and did not know what was actually done by the court, and if the minutes show all that was done, the court did not do its duty in all cases." Witness says, "his meaning is, that the minutes of the court do not show all things that he thinks should have been done; that his knowledge of the minutes made about 1840, is derived from reading the minutes of the court since he has been in the office; that he has had to look over them, and frequently had to copy portions of them. The minutes of the court about the year 1840, are not as full and as formal as they have been made for a few years past." Defendant also offered to prove by Thomas A. Falconer, that in the year 1840, the newspaper called "The Holly Springs Banner" was published in Holly Springs, by E. Junius Foster, and that he, Falconer, purchased the office of the said Foster, who had left the State, and is now beyond its limits; that no file of the paper which the said Foster published now exists, or can be found, and that the receipt produced, and which is in the words and figures following, to wit: "BENJAMIN D. ANDERSON, Administrator of Aaron Root, 1840. April 21. To advertising citation, DR. Received the above sum of eighteen dollars in full of the above account, from B. D. Anderson, administrator, this 6th day of December, 1841. E. JUNIUS FOSTER." -is in the handwriting of the said E. Junius Foster, and that the signature thereto, is the genuine signature of the said Foster." To the reading of so much of the said transcript of the records of the Probate Court of Pontotoc county as refers to the sale of the lands of the said decedent, Aaron Root, and the order of said Probate Court, as evidence in the case, the plaintiffs, by their counsel, objected, on the ground that the said proceedings were defective, in not showing that the citation ordered by the court, calling upon the heirs of the said decedent, Aaron Root, to show cause against the sale of the lands of the said decedent, had been Root et al. v. McFerrin. posted and published, as the law requires, and that the order of sale itself was defective, in not reciting that publication and posting had been made; and also on the further ground, that said proceedings were in other respects informal, irregular, and illegal; which exception to said transcript as evidence in the cause, showing authority on the part of said Anderson, administrator as aforesaid, to sell said real estate of said Root, was sustained by the court, and the said transcript was excluded from the jury, as evidence tending to show such authority, but was admitted by the court, and read to the jury, as evidence to be considered by them, in connection with the defence of the Statute of Limitations, upon which the defendant announced that he would rely; and particularly in connection with the fifth section of an act to amend the several acts of limitations, approved February 24, 1844. To the decision of the court on the subject of the admissibility of said record, as evidence before the jury, both the plaintiffs and defendants excepted at the time; the plaintiffs, because said record had been admitted for any purpose whatever, and the defendant, because it had not been admitted for the purpose of showing the authority under which the sale of the land in controversy had been made. The plaintiffs also objected to the admission of the testimony of the witness Earle, and to the admission of the testimony of the witness Falconer, and of the receipt of E. Junius Foster; which objections were sustained, and the said testimony excluded: to which opinions and judgments of the court, defendant excepted. Plaintiffs also objected to the reading, as evidence, of the deed from Anderson, administrator, to John D. Bradford, the purchaser at the administrator's sale, conveying the land in controversy; which objection being overruled, plaintiffs excepted. Defendant introduced John C. Teel as a witness, who proved that the valuable improvements made upon the land in question by defendant were worth some six thousand dollars, including the cost of putting on the land, apple and peach orchards, which witness estimated at $250; to which testimony, as to the cost of said orchards, the plaintiffs objected; which objection being overruled, plaintiffs excepted. Defendant having also introduced, before the jury, testimony Root et al. v. McFerrin. tending to prove that the land in controversy had been sold in October, 1840, by virtue of a decree or order of the Probate Court of the county of Pontotoc, and that said sale had been bona fide made, and the purchase-money paid by the vendee, and that said land had been held by himself, and those under whom he claimed, adversely, since the beginning of the year 1841, under the sale aforesaid, and the testimony on both sides being closed, defendant moved the court to charge the jury as follows: "1st. That if they believed, from the testimony, that on the 24th day of February, 1844, one of the plaintiffs had attained the age of twenty-one years, and was not at that time a married woman, insane, without the limits of the United States, or personally imprisoned; and that this action was not brought until after the lapse of three years from the 24th day of February, 1844; and if they further believe from the testimony that the land sought to be recovered in this action, was sold by the administrator of the father of plaintiffs, by virtue of an order of the Probate Court of Pontotoc county, fairly and in good faith, and that the purchase-money was paid by the purchaser at such sale, and the land has been held. adversely under said sale since the year 1841; and that the plaintiffs claim said land as heirs of said Root, then they must find for defendant. "2d. That if they believe, from the testimony, that any one or more of plaintiffs were twenty-one years of age, and not under any disability to sue, as much as five years before the bringing of this suit, and that during that time, the land sued for has been held adversely by defendant, or those under whom he claims, they must find for defendant." In lieu of said charges asked by the defendant, the plaintiffs asked the court to give the following: "If the jury believe, from the evidence, that the plaintiffs were all minors, at the time the cause of action accrued in this case, then the Statute of Limitations did not begin to run as against any of the plaintiffs, until the youngest became of age, and they must find for plaintiffs." The said charges so respectively asked by the defendant and the plaintiffs, the court refused to give, but in lieu of them gave to the jury the following charge: Root et al. v. McFerrin. "If the jury believe, from the evidence, that any of the plaintiffs were of the age of twenty-one years at the time of the passage of the Act of 1844, and the suit was not brought within three years from that date; or that any of the plaintiffs were minors at the date of that act, and the suit was not brought within five years of their coming of age; in either case, they will find for the defendant as to them. But as to others of the plaintiffs, if there be such as were under age at the date of the act, and had not reached their majority more than five years before the commencement of this suit, they will find for them as if they had sued without joining the others." To the refusal of the court to give the said charges so asked by the defendant and the plaintiffs, and to the giving of that which was given by the court, both of said parties excepted respectively. The jury found for the defendant, as to the plaintiffs James A. Root, Miles Carey, and his wife, Sarah Jane Carey, and Harriet H. Couch; and they found for the plaintiffs Margaret L. Root, Elizabeth C. Root, and Thomas J. Root, together with the sum of $900, for the rent and profits due to them for the use and occupation by defendant of their portion of the lands in the complaint mentioned; and they found further, that the said defendant had made useful and valuable improvements upon said lands to the value of three thousand and one hundred dollars ($3100). Whereupon, judgment was entered by the court, that the said plaintiffs, Margaret, Elizabeth, and Thomas, do have and recover against the said defendant, one undivided half of the lands in the complaint mentioned, with all of the privileges and appurtenances thereunto belonging, together with the said sum of $900, for the rents and profits due to them, for the use, &c., of said lands; and that said defendant do have and recover of said plaintiffs, Margaret, Elizabeth, and Thomas, the said sum of three thousand one hundred dollars ($3100), (which shall be credited with the said sum of $900) the value of his improvements; and that a writ issue, &c., but execution to be stayed, &c.; and that plaintiff recover of defendant the costs, &c. Plaintiffs then moved the court to set aside said verdict, and grant them a new trial; which motion was refused. Root et al. v. McFerrin. And thereupon, both parties appeal to this court. Which motion the court overruled. McFerrin, the defendant below, assigns the following errors: 1. The exclusion of the transcript of the Probate Court, as evidence showing or tending to show legal authority for the sale of the land in controversy. 2. The exclusion of the deposition of B. C. Earle. 3. The exclusion of the testimony of Falconer, and of the receipt of E. J. Foster. 4. The refusal of the court to give the charges asked by defendant, and the giving of the charge which was given. The heirs of Root made the following assignment of error: 1. The refusal of the court to give the charges asked by them. 2. The giving of the charge by the court in lieu of plaintiffs' charge. 3. The overruling of their motion for a new trial. 4. The admission of the evidence of Teel in relation to the value of the orchard. 5. The admission of the record of the Probate Court for any purpose. Watson and Craft, for McFerrin. As to the error first alleged: The sale of the lands sought to be recovered in this action, was ordered and made for the payment of the debts of the decedent, A. Root, and in the regular administration of the estate of said intestate. They then set out the statute, Hutch. Dig. 666, 667, §§ 98, 99, 100, 101. The foregoing was the law when the present Constitution of the State was adopted, in 1832, the 18th section of the 4th article of which provides, that "A Court of Probate shall be established in each county of this State, with jurisdiction in all matters testamentary and of administration," &c. To carry into effect this provision, an act was approved March 2d, 1833, establishing a Court of Probate in the several counties of the State, the 12th section of which declares, that all acts now (then) in force, "in relation to the duties, powers, and jurisdiction of the Orphans' Court, be and the same are hereby |