This action was brought by appellants against appellees to recover one.undivided half of certain lands in Scott county. Both parties claim under Joseph J. Tomlin-son, deceased. Appellants claim under his will; and appel-lees that he, in his lifetime, gave it to his son, Wiley A. Tomlinson, and that Wiley died, and that it was sold to pay the debts against his estate and purchased by Calvin H. Robertson, who, thereafter, died intestate, leaving appellees his only heirs.
Much evidence was introduced in the trial to show that-the land in controversy was given by Joseph J. to his son, Wiley; and that Wiley took possession of it, and thereafter-held, improved and occupied it adversely. Evidence was also introduced tending to prove that an action was instituted in the Scott circuit court by Sarah Clark against Samuel II. Payne, as administrator of Wiley A. Tomlinson, deceased,, and appellants, as Wiley’s heirs ; that Sarah Clark alleged in her complaint in that action that she*was a creditor of Wiley; that he died seized in fee simple of the land in controversy; that Payne had fraudulently procured an order of the probate court to sell the land, and had sold it to Van-dever, who, without paying for it, conveyed it to Payne; and asked that the sale to Vandever and the conveyance to Payne be set aside, and that the lands be sold under an oyder of the circuit court for the purpose of paying Wiley’s debts, It was proven that the records containing the orders of the court in that action had been burned. A certified copy of what purported to be an order, made in the action instituted by Clark, by Ben. R. Davidson, acting special judge by consent of the parties, was read as evidence over the objection of appellants. It is stated in the copy that a report of a commissioner, appointed to sell the land in controversy, came on for confirmation, from which it appeared that the land had been sold, in conformity to a decree made at a prior term, to Calvin H. Robertson, and that the sale was approved and confirmed, and it was ordered and adjudged.that all the right, title, claim and interest which Wiley A. Tomlinson had in and to the land be divested out of his heirs and vested in Robertson, his heirs and assigns forever.
Although the statute of limitations was pleaded by defendants, the question raised thereby was not submitted to the jury, but the court instructed the jury substantially as follows : “ That the proceedings of a court of record and of general jurisdiction are presumed to be regular, and that all the repuirements of the law were complied with by such court in any proceeding had before it.” And that “ if the jury believe from the evidence that the land in controversy* has been sold by a commissioner of this court as the property of Wiley A. Tomlinson, deceased, to pay the debts of said estate, under and in pursuance of a former order and decree-of this court made and rendered in a proceeding then and* there pending, and that the plaintiffs in this action, or those from or through whom they claim, were parties to said suit, and had legal notice of the pendency of said suit, or appeared and answered thereto; and that said Calvin H. Robertson became the purchaser of said land at said sale ■and said sale and purchase- was, by the order of said court, ■affirmed, and said Robertson thereby invested with title to •said land, and these defendants are the widow and heirs of said Robertson, and still claim under and through him, then they, the plaintiffs in this suit, are estopped from setting up claims to said land in this suit described, and they must find for the defendants.”
A verdict was returned and a judgment was rendered against the plaintiffs in favor of defendants; and plaintiffs, after moving for a new trial, which was denied, and saving exceptions, appealed.
The order made by Davidson, acting as special judge under an agreement of parties, being void, there was no confirmation of sale made under decree of the court, and Robertson, the purchaser, acquired no title to the land. Wells v. Rice, 34 Ark., 346 ; Sessions v. Peay, 23 Ark., 41 ; Green v. Bell, 38. Ark., 78.
The order relied on to show confirmation only undertook to confirm sale of the estate and interest which Wiley Tom-linson had at the time of his death, and to vest that estate and interest in the purchaser. If the order had been valid it would not have been sufficient to show that appellees were entitled to the land, and could only have shown they were entitled to such interest as Wiley had at the time of his death. It still remained to be ascertained what interest that was. The instructions given were, therefore, erroneous.
. Inasmuch as this cause will be remanded and the question raised by the plea of the statute of limitations may arise in another trial, we will consider it now.
Reversed and remanded for a new trial.