Stewart v. Mathews-Opinion of Court. 7. Where by a will two persons are named as executors, and the probate record shows that one of them refused to qualify, letters testamentary may be issued to the other as sole executor, and a deed executed by him as such, pursuant to a power contained in the will, carries the title. 8. A will authorized the executors to sell at public or private sale "all my lands on Orange lake, in Marion county, known as the McCormick plantation." Proof that a certain lot was occupied, fenced and used by McCormick, the decedent, in connection with other land adjoining, lying on Orange lake, and on which he resided, is competent to show whether the lot was considered by him to be a part of his plantation and which he intended should be sold. 9. A conveyance by an executor under a power of sale contained in a will, to a purchaser for a valuable consideration, is good against a former grantee whose deed was not recorded and who was not in possession, the purchaser having no actual or constructive notice of the former deed or of any claim of right under it. 10. Where a cause is tried before a practicing attorney, as a referee, who has kept a complete record of the proceedings, including the testimony, his rulings, exceptions thereto duly attested, filed with the pleadings and papers in the case, the same will be considered on appeal as a bill of exceptions. Appeal from the Circuit Court for Marion county. Trial and judgment by Mr. W. A. Hocker, attorney-atlaw, as referee. At the June Term, A. D. 1882, the appellee moved to dismiss the appeal. The facts are stated in the opinion. S. D. McConnell for the Motion. John G. Reardon, contra. THE CHIEF-JUSTICE delivered the opinion of the court on the motion: This was an action of ejectment tried before a referee, who rendered judgment in favor of the plaintiff. The record of the trial and judgment was marked by the Stewart v. Mathews-Opinion of Court. clerk, "Filed in clerk's office of Marion county December 20, 1881, R. B. Bullock, clerk;" also marked, "Refiled by order of referee February 13, 1882." On the 15th day of February, 1882, defendant's attorney gave notice that on the 22d February, 1882, he would make a motion before the referee for a new trial, and on the same day filed the grounds of the motion in the clerk's office. On the 27th day of March following the referee filed his. decision of said motion as follows: "Upon consideration of the within motion of defendant for a new trial in the above entitled cause the said motion is refused. It appearing to the referee from the certificate of the clerk that the clerk made a mistake in the date of the filing of the decision of the referee, and that said date should be the date of the payment of the referee's costs, to-wit: the 13th of February, 1882, the clerk is directed to correct the date of said decision and to mark said decision as filed on said 13th February, 1882." This is signed by the referee, dated and filed March 27th, 1882. A bill of exceptions was signed by the referee April 24, 1882. On the 28th March, 1882, the defendant, by her attorneys, entered an appeal from the decision of the referee, and filed the appeal bond duly approved April 26. Appellee now moves to dismiss the appeal upon the grounds that the motion for a new trial was not made within ten days after the rendition of judgment by the referee; that the motion was not heard within ten days after filing the referee's report; that the bill of exceptions was not signed on the day of refusing a new trial, and time was not extended to prepare bill of exceptions; and that the appeal was not taken within thirty days after judgment was rendered. Neither of these grounds is available to obtain a dismis Stewart v. Mathews-Opinion of Court. sal of an appeal, except the one last named. The statute authorizes an appeal from any final judgment within thirty days after its rendition, whether a motion for a new trial was made or a bill of exceptions appears regularly in the record or not. The only question is whether this appeal was taken within thirty days after the referee's judgment became a "final judgment." Regarding the time of filing the record by the referee in the clerk's office, which is not material here, it does not appear that the referee gave notice to the parties of such time of filing, and we remark that the only evidence of such notice is the fact that on the 15th February, 1882, defendant's counsel gave notice of his motion for a new trial to be heard on February 22d before the referee, the referee having directed the filing of his record of the trial and judgment on the 13th February. No presumption arises that appellant had notice of filing the referee's report until February 15, the date of the motion. The motion having been submitted to the referee his decision thereon refusing the same was made and filed on the 27th day of March, 1882. The appeal was entered the next day and perfected by filing the bond, duly approved, April 26. The appeal was, therefore, taken within thirty days after filing the decision of the motion for a new trial, when the finding became "final." The third section of Ch. 3122, act of 1879, regulating proceedings before referees requires the referee to notify the parties of the filing of his judgment in the clerk's office, and that if there shall not be a motion for a new trial, rehearing, in arrest of judgment, &c., within ten days after giving such notice "the judgment shall stand confirmed as the judgment of the Circuit Court for execution or enforcement, subject to review on appeal or writ of error." Most assuredly this statute does not intend that parties shall be Stewart v. Mathews-Opinion of Court. prejudiced by the judgment or report of the referee until they have notice of it, and it is equally clear that they have ten days after the record is filed to make their motion for a new trial, &c., after the expiration of which time, and not before, the judgment stands as the judgment of the Circuit Court for execution, &c. By section four, if a motion is made for a new trial, rehearing, &c., and is denied, "the referee shall file all the papers used on such motion together with his decision in writing with the clerk, and such decision and judgment or decree shall be entered in the minutes of the court, and stand as the judgment or decree of the court as in other cases." The effect of this section is that when a motion is made for a new trial the finding of the referee is subject to be set aside by him and until the motion is decided and the decision filed it does not become final, "and stands as the judgment or decree of the court" for execution. The sixth section provides that the motion for a new trial must be brought to a hearing before the referee within ten days after motion filed, upon due notice to the opposing party. The notice was given that the motion would be heard before the referee for a new trial at a day within ten days from the date of filing the motion. No other day is mentioned as the time of the hearing and though the day of the actual appearance of the parties before the referee is not stated, the referee considered the motion, no objection thereto being made, and he afterwards decided. it, filing his decision on the 27th day of March, 1882, after the expiration of ten days. The law does not require the decision to be made within the ten days. This decision of the motion refusing a new trial, gave finality to the judgment and fixes the time when the thirty days limited for taking an appeal begins to run. We are well satisfied that this is the proper construction of the statute. To hold that the appeal must Stewart v. Mathews-Opinion of Court. be taken within thirty days from the filing of the referee's report would produce the anomaly of an appeal pending in this court which suspends the jurisdiction of the Circuit Court or the referee, and a motion for a new trial pending at the same moment before the latter tribunal which it would have no power to decide. The Legislature intended no such absurdity. The appeal having been taken within thirty days after the judgment became final, the motion to dismiss is denied. At the present term the case was tried upon its merits. The facts of the case are stated in the following opinion. John G. Reardon for Appellant. S. D. McConnell for Appellee. THE CHIEF-JUSTICE delivered the opinion of the court: This was an action of ejectment commenced by Mathews, appellee, against the appellant, tried before a referee, who gave judgment in favor of the plaintiff, and after denying a motion for a new trial the defendant appealed. The suit was brought to recover the southwest quarter of the southeast quarter of section twenty-eight, T. 12 S., R. 21 east, in Marion county. It is agreed that the title was formerly vested in Paul McCormick as patentee of the United States. The plaintiff offered in evidence a deed executed by Paul McCormick to Abner H. McCormick, dated February 2, 1858, proved for record December 12, 1878. Defendant's counsel objected to the introduction of this deed on the ground that it was not shown that Abner McCormick was ever in possession of the land, and further that the deed was not proven or recorded for over twenty years after its execution. The referee overruled the objection and admitted the deed in evidence, to which ruling defendant excepted. |