Comer v. Hart

STONE, O. J. It is a mistaken view of the rule, when it is asserted that a suitor can produce evidence otherwise illegal, because through accident or misfortune he is unable to produce higher or better evidence. Many facts and circumstances are either insusceptible of direct proof, or are much more difficult of positive proof than other facts are. It is on this account thaDthe rule has become established, to admit, not the best evidence the exigencies of the case admit of, but the best evidence which the nattire of the question admits of. — 1 Brick. Dig. 848, § 623; 1 Green. Ev. § 60; 1 Whar. Cir. Ev. § 82. The. testimony of the witnesses Pugh, McKleroy and others, offered as proof of the execution and contents of the written instrument drawn by the former, for and at the request of II. C. Hart, appellant’s intestate, was wholly illegal for the purpose offered, and was, for that reason, rightly ruled out by the court. The title to the property sued for being in John Hart at the time of his death, it descended immediately to his heirs, of whom the plaintiff in this action is one. She has, therefore, shown a prima faeie right of recovery, and no legal title is-shown to have vested in PI. O. Hart, under whom .appellant claims, under and by virtue of the purchase he made at administrator’s sale. To have perfected his title under that purchase, the sale should have* been reported to the Probate Court, the sale confirmed, purchase-money reported paid, order to make title granted, and title executed. None of these steps were taken ; and the .consequence is, the legal title remained, where the law. had cast it, in the heirs of John Hart. In fact, it can not be affirmed that, in law, any sale has been made. Such sales are what are called judicial sales — sales by and under the authority of the court. They derive their force and efficacy, not from the auctioneer’s hammer, or announcement of the highest and best bidder. Even the executory contract of purchase, if it ma,y be so called, is imperfect and invalid, until it is reported and confirmed, though the bidder may bind himself, if proper steps are taken to avoid the statute of frauds.—Perkins v. Winter, 7 Ala. 855; Wallace v. Hall, 19 Ala. 367; Hutton v. Williams, 35 Ala. 503; Doe, ex dem. v. Hardy, 52 Ala. 291; Landford v. Dunklin, 71 Ala. 594, 606; Mc395 Cully v. Chapman, 58 Ala. 325; Dugger v. Tayloe, 60 Ala. 504; Tayloe v. Dugger, 66 Ala. 444; Cruikshank v. Luttrell, 67 Ala. 318; Watson v. Martin, 75 Ala. 506. The testimony shows that H. O. Hart became- the administrator of John Hart, his deceased father, and, as such administrator, had possession of the property for many years after his appointment. Such possession is authorized by our statutes. McCullough v. Wise, 57 Ala. 623; Brewton v. Watson, 67 Ala. 121. His attempt to make sale being, as we have shown, no sale in fact, the parties must be regarded, in a court of law, as if no sale had been attempted. And having entered as administrator, there is nothing in this record to show a public or notorious change in the nature of his holding, or to convert it into an adverse possession,.in whose favor the statute of limitations will run.—McCarthy v. Nicrosi, 72 Ala. 332; McCarthy v. McCarthy, 74 Ala. 596; 3 Wait’s Ac. & Def. 450, 451. The statute could not, at most, begin to run, until H. O. Hart assumed to dispose of the entire property, if indeed it did until sale was made under the mortgage to Oates. This last question we need not decide, as the first happening of those events fails to give sufficient time for the limitation of ten years to perfect a bar. Other questions have been argued, but we need not consider them.—Morgan v. Casey, 73 Ala. 222. If H. O. Hart, or those claiming in his right, can show payment in fact of the purchase-money, or a sum equal to it, to or for the benefit of his co-heirs of the estate of John Hart, deceased, there may be relief for them in the Chancery Court. McCullough v. Wise, 57 Ala. 623; Ganey v. Sikes, 76 Ala. 421. The appellants have shown nothing tending to prove a defense at law, and the judgment of the Circuit Court must be affirmed.