Hudson, Gnardian, &c. v. Parker.

count, the decree should be in favor of her personal representatives, (6 Ala. Rep. 610;) and if she be living, it should be in favor of herself and husband jointly. [3 Ala. Rep. 653.]

J. E. BELSER, for the defendant in error. The error in the settlement of the guardian's accounts, for a year previous to the rendition of the decree, if it really existed, could not be corrected at the instance of the guardian. [Clay's Dig. 226, 27; 6 Porter's Rep. 184; 4 Ala. Rep. 121; 6 Id. 614.]

The decree is not in favor of the husband of the ward alone. This is sufficiently shown by the terms of the decree itself. [3 Ala. R. 653; 6 Id. 610.]

COLLIER, C. J.-Conceding it to have been competent for the Orphans' Court to have permitted the deduction from the charges made in the guardian's account against himself, it is quite enough to say, that there is nothing in the record to show that the error suggested, did in point of fact exist. We cannot then know that the court did not decide correctly, and must rather intend in favor of the decree. It is an acknowledged principle, that the party alledging an error, must show its existence, and presumptions cannot be indulged prejudicial to the judgment of the primary court.

In Crenshaw v. Hardy, 3 Ala. Rep. 653, it was held, that where an infant ward marries, and the accounts of her guardian are audited and reported for final settlement, a decree for a balance in his hands must be rendered in favor of both the husband and wife. In that case a decree in favor of the husband alone was reversed on error. It is insisted for the defendant in error, that in the present case, the decree is, in effect, in favor of himself and wife. True, it recites that the guardian is indebted to the husband in right of his wife, and it is adjudged that he recover in her right. This is nothing more than is shown by the entire record, viz: that the liability of the guardian results from his accountability to the wife-that from her, as the meritorious cause, the right of recovery emanates.

The decree is in favor of the husband

Brown v. Little.

alone-and execution upon it would issue in his name, if he were to die, in favor of his representatives, and not his wife. It results from this view, that the judgment of the Orphans' Court must be reversed, and the cause remanded.

BROWN v. LITTLE.

1. A judgment by cofession, under a warrant of attorney, although it is unnecessary to set out the warrant, or its proof, on the record, must show the authority was verified, and sufficient to authorize the particular judgment. Under a power to L. and his executor to take a judgment, the executor is not entitled to enter it up, without proving the power and producing and proving the note to which the power applies, as well as his letters testamentary.

Writ of Error to the Circuit Court of Washington.

Ar the spring term of said court, for the year 1845, Sarah Little, as the executrix of George W. Little, filed a declaration in assumpsit, against Benjamin I. Brown, on a note, dated 7th October, 1843, payable to Geo. W. Little, on the 1st March, 1845, for one thousand dollars. No process appears in the transcript, nor was there any appearance by attorney. At the same term a judgment was entered in these terms: "This day came Sarah Little, executrix of the last will and testament of Geo. W. Little, deceased, and exhibited to the court here, the writing obligatory of the said Benj. I. Brown, authorizing the said Geo. W. Little, his attorney, executors, administrators, or assigns, to take a judgment by confesssion against the said Benjamin I. Brown, for the amount of a promissory note, in the said writing obligatory specified, and stating that the amount of the note is $1,008 88. It is therefore considered," &c. rendering judgment for that sum. The rendition of this judgment is now assigned as error.

Brown v. Little.

E. W. PECK, for the plaintiff in error, insisted

1. That the record of a confession, or warrant, or power of attorney, ought to show when the warrant was made.

2. Conceding the existence of the warrant, the entry ought to show the plaintiff was executrix, otherwise there is no authority.

3. It does not appear the warrant of attorney was proved before the court.

4. The authority may not have been to confess judgment in the particular court.

No counsel appeared for the defendant in error.

GOLDTHWAITE, J.-The practice in the English courts with relation to warrants of attorney, is somewhat different from that which prevails with us. There, writs of error upon judgments entered by warrant, are never heard of, but the courts control their abuse, and correct irregularities in the proceedings by motion. [2 Chitty's G. P. 333.] As a preliminary to allowing judgments of this nature to be entered up, the courts require, in general, the affidavit of the subscribing witness to the execution of the warrant; and also, an affidavit that the debt continues due. [3 Ib. 671.] With us, the mode is to apply directly to the court, to render the judgment, upon producing and proving to the court a warrant authorizing the particular judgment which is asked. In Hodges

v. Ashurst, 2 Ala. Rep. 301, and Bissell v. Carville, 6 Ib. 503, questions arose as to the sufficiency of the judgment entries, and we held, it must appear from the recitals that the authority was verified to the court, and that it was sufficient to warrant the particular judgment given, although it is not essential to set out the warrant, or its verification, in terms in the entry. In the present case, it is said the writing obligatory was exhibited to the court, authorizing Little, his attorney, executors, administrators, or assigns, to take a judgment by confession, for the amount of a promissory note therein. specified, but it does not appear that the warrant was proved, as well as exhibited, or that the note described in the war

Pryor & Fisher v. Butler.

rant was produced or proved to the court. In addition to these defects, no evidence whatever was exhibited to the court, that the plaintiff was the executrix of Little. It is true, if the confession had been entered by an attorney, appearing for the defendant by virtue of this warrant, we might not be constrained to look beyond the appearance. [Hill v. Lambert, Minor, 91.] But the practice is otherwise, when the party undertakes himself to act under the power.

For these defects in the entry, the judgment must be re⚫versed and remanded.

PRYOR & FISHER v. BUTLER.

1. A purchaser of a lot at a mortgage sale, where the lot had previously been sold under execution against the mortgagor, and the possession delivered by the sheriff to such purchaser, cannot transfer his title, so as to authorize his alienee to sue in his own name.

Error to the Circuit Court of Coosa.

THIS was an action of trespass to try title to a lot of land in Wetumpka.

The material facts as they appear upon a bill of exceptions are, that the plaintiff produced a patent for the lot in question from the United States, to one Fleming; a deed from Fleming to Owen & Wright, which he proved by the subscribing witnesses thereto; also a deed from Owen & Wright to Steber and Warren, which was duly acknowledged before a Circuit Judge, and recorded, in Coosa county. The plaintiff then offered to read a mortgage, executed by Steber and Warren, on the lot in question, dated the 8th August, 1837, which was recorded upon an acknowledgement made the same day. The deed was recorded 31st October, 1837.

Pryor & Fisher v. Butler.

The plaintiff also proved the execution of the mortgage by the subscribing witnesses. It was given to secure the payment of three notes, due by Steber & Warren, to the Bank, dated 31st July, 1837, and due 26th July, 1838, 1839 and 1840. The mortgage contained a proviso, that if the notes were not punctually paid, it should be lawful for the President of the Bank to seize and sell the lot for the payment of the notes.

The plaintiff then read a resolution adopted by the directors of the Bank, authorizing the President to transfer the mortgage to Henry D. Bullard, and also read an assignment of the mortgage by the President, to Bullard, dated 2d August, 184 He then proved, by the cashier of the Bank, that the notes of Steber & Warren were bona fide the property of the Bank; that the first was paid, 28th July, 1838; that the other two were paid 12th August, 1841, by four notes made by D. Steber, H. D. Bullard, and L. P. Butler, the last of which fell due 1st August, 1843. That the first three of the notes were paid in cash. That the notes of Steber & Warren were handed to the bank attorney, and put in judgment. He further proved, that the sheriff of Coosa county sold the lot in controversy, under execution against Steber & Warren, in favor of the bank. That the proceeds were not paid to the bank, but an order given to pay the proceeds to Bullard. That the Bank sold the lot under the mortgage, in August, 1841, to Bullard, to pay the balance of the debt for which the mortgage was executed.

It was then proved that Bullard advertised and sold the lot to the plaintiff, for $125, and offered to read the deed of . Bullard to the plaintiff for the same. The defendants objected, but the court overruled the objection and the deed was read.

The defendants then read a deed from the sheriff to one Tilman Leake, for the lot, which had been sold on a judgment obtained by the Bank against Steber & Warren, and a deed from Leake to J. W. Pryor, one of the defendants. They also read an order by the Cashier of the Bank, directing the sheriff to pay to Bullard the money in his hands, accruing from the sale of the lot upon the execution of the bank against Steber & Warren, and that by the direction of Bul