Coffin v. Murphy

Mississippi Supreme Court April 15, 1885

Coffin v. Murphy, 62 Miss. 542 (Miss. 1885)

Campbell

Opinion of the Court

Campbell, C. J.,

delivered the opinion of the court.

By § 1076 of the Code of 1871 evidence in the chancery courts was required in all cases to be taken by deposition, except that the mere execution of title papers or exhibits could be proved *545orally in open court. Under this law the deed of trust and note may have been proved orally in open court, and if this was .sufficient to maintain the decree we would indulge the presumption that it was done, but a necessary fact to be established was the death of the trustee named in the deed, and that could not be proved except by deposition, and there was none. We are not at liberty in this appeal from the decree of the court below to indulge the supposition of the loss of a deposition. If that were shown, the proper course would be to exercise the inherent power of the court to substitute it. The decree complained of was made without sufficient evidence to uphold it, and it is

Reversed and cause remanded for further proceedings in the court below.

Reference

Full Case Name: John Coffin v. Elizabeth Murphy and Husband
Status: Published
Syllabus: 1. Chancery. Appointment of new trustee. Proof. Deposition. Code 1871, $ 1076. Upon a bill filed against minors seeking the appointment of a new trustee in a deed of trust in the place of one who has died, it is necessary to prove the death of the trustee whose place the court is asked to fill, and, under § 1076 of the Code of 1871, such proof could only be made by deposition. 2. Same. Decree appointing new trustee. Absence of deposition. Presumption on appeal. This court cannot presume that a deposition establishing the death of the original trustee in such case has been lost, where the record brought here on an appeal from the decree appointing a new trustee contains no deposition.