Hershy v. Berman

Cockrill, C. )• > J 1. Evidence: Recitals in deeds. This suit is similar to that of Hershy v. Rogers, ante, in all respects except as to the title of the plaintiff, who is the appellee here. His complaint alleges that he is the owner of the land. The allegations of title are denied in the answer, and the burden was upon the appellee to establish his title. The only proof in the record to sustain it is a deed purporting to be executed by the heirs and executors of John Rogers. The deed recites that it was executed by the executors under a power conferred by the will of John Rogers. But no will or other authority for the sale was shown. As this was a necessary link in the appellee’s title, it was incumbent upon him to show it. Janes v. Williams, 31 Ark., 175; Ludlow v. Flournoy, 34 Ib., 451. It is admitted by the answer that Wood B. Rogers was one of the heirs of John Rogers, and it was his original interest in the land that the appellant sought to subject to the satisfaction of his judgment. The deed referred to was executed, not by Wood B. Rogers in person, but by a third person, who claimed authority to act for him by virtue of a power of attorney. The power of attorney was not exhibited or any proof made in reference to it. There is, therefore, no evidence that the power exercised by the attorney was conferred by Rogers, and the deed is not operative to pass his title. Carnall v. DuVal, 22 Ark., 136; DuVal v. Johnson, 39 Ib., 182; Wilson v. Spring, 38 Id., 181. The appellee wholly failed to establish an interest in the land. He is not even shown to be in possession, and is not in a position to invoke the aid of a court of equity in his behalf. Hershy v. Rogers, ante. Counsel have entered into an agreed statement of facts here and caused it to be filed with the clerk for our consideration, from which it appears that oral testimony was heard by the chancellor, tending to establish title in the appellee by virtue of adverse possession; but this could be brought to our notice only by bill of exceptions or by agreement of record in the trial court, and must be disregarded. Hershy v. Rogers, ante. 2. Practice in Supreme Court : N o amen dment of record by agree- If there was anything in the record to indicate that oral proof was heard at the trial, we would presume that the decree is correct and affirm. Oral testimony may be heard at the discretion of the court, in chancery proceedings, but the common practice is to reduce all testimony to writing and there is nothing in the record to indicate a different practice on the trial of this case. 3. Same:— Presumption as to oral evidence in chancery. The decree must be reversed and the bill dismissed, but in view of the suggestion of counsel referred to, this will be done without prejudice to the rights of parties.