Bishop's Heirs v. Hampton

19 Ala. 792 | Ala. | 1851

LARGAN, C. J.

If an entire record, or a part thereof, is lost or destroyed, another may be substituted in its stead upon proof of the contents of that which is lost. This has been so -often decided by this court that the question is not open to controversy.—Joyce v. Dozier, 8 Por. 303; Williams v. Powell, 9 ib. 493; McKenzie v. Bonham, 5 Ala. 608; McLendon v. Jones, 8 Ala. 298. But I have found no case that goes so far as to hold that whena:part only is lost, it may be substituted, and its contents shown by parol proof to be repugnant to or inconsistent^ with the part remaining. And I am entirely satisfied that when it is proposed t© substitute a part of a record by parol proof, it •must be consistent with the part remaining on file, and not alter •or vary its legal effect as evidence. A contrary rule would allow a reeord to be altered by parol proof, iu violation of the -maxim, that a record speaks the language of verity, and the parties bound thereby can aver nothing against its truth.

Applying this test to the action of the Orphans’ Court, in allowing the petition of the administrator to sell the land of H. G. Bishop, dec’d., to be substituted in lieu of the petition that was lost, I think the court erred; for the entries on the minutes of the court ■show that the grounds on whieh the application to sell the land was made, were, that the estate was entirely solvent, and that it would be of infinite advantage to sell the real estate. The judgment entry also shows that a day being set to hear the application, and the heirs at law notified to show cause why it should not be granted, none was shown, and therefore a decree of sale was rendered. The grounds, therefore, upon which the court proceeded to decree a sale, as appears from the record remaining on file, were, that the estate was solvent, and that it would he of infinite benefit to the heirs to sell the land. But the petition proposed to be established by the parol proof shows that the grounds upon which the administrator proceeded to obtain the order of sale, were, not only that the estate was'solvent, and that it would be beneficial to the heirs to sell, hut also the further ground that the land could not be equally, fairly, and beneficially divided between the heirs at law, without a sale. To allow this petition to be substituted by parol proof, would be to allow a new fact to be added to the record that remains on file, and thus the legal effect of the part not lost would be altered, or varied, by parol proof, in violation of one of the most sacred rules of evidence. — See The Heirs of Bishop v. Hampton, 15 Ala. 761.

2. But it is contended that a writ of error will not lie to the order of the Orphans’ Court, allowing the substitution. We cannot agree with the defendant’s counsel in this proposition. The substitution of the record of a final judgment or decree is in its nature a final order or judgment, and is conclusive against the party unless reversed or annulled. We entertain no doubt but it may be reversed by writ of error.

Nor is the writ of error defective on account of parties. The defendant in error, who has succeeded to all the rights of the purchaser who bought the land, at the administrator’s sale, made the motion to substitute the lost record, and gave the plaintiffs in error, who inherited the land from the father, notice thereof. There could be no necessity for making any other person than the parties to this motion parties to the writ of error.

The judgment of the Orphans’ Court allowing the petition to be substituted in lieu of the one that is lost is erroneous, and must be reversed.