¶1On the sixteenth day of December, 1865, Quinces R. Nolan and his wife Antoinette C. Nolan executed to Jackson P. Nolan a power of attorney to sell lands of which Quinces R. Nolan was the owner, including the land in Douglas county, Missouri, which is involved in this litigation.
¶2The power of attorney was acknowledged before Julian A. Arkin, department clerk of the Inferior Court of Henry county, Georgia, on the — day of —, 1865, and attested by the seal of said court. It was recorded in the recorder’s office *563of Vernon county, Missouri, where a part of the lands embraced therein are located, in January, 1869.
¶3On the seventeenth day- of October, 18J0, Quinces R. Nolan and his wife Antoinette, by their attorney in fact, executed -a deed in due form to ¥m. T. Cessna, by which they conveyed to him all of the undivided one half interest in'sections 18 and 30, township 26, range 11, and sections 13 and 24 of township 26, range 12, containing 2,554 acres more or less in Douglas county, for the consideration of $638.59. On the same day and for the same expressed consideration Jackson P. Nolan and Lizzie O. Nolan, conveyed in their own right, to said Cessna the one undivided interest in the same land, and it is claimed by plaintiff, and the petition alleges, “that said deed failed and omitted to declare or recite the.fact that the said Jackson P. Nolan was conveying said land under letters and power of attorney, when in fact and in truth he conveyed said land as an attorney in fact. That the deed by reason of the fact aforesaid conveyed to said ¥m. T. Cessna an equitable title only when it was intended by and between the said Jackson P. Nolan and ¥m. T. Cessna, that the legal title should be conveyed by such deed.”
¶4The petition then prays that the deed made by Jackson P. Nolan to ¥m. T. Cessna be decreed to convey the legal title to the land therein described, and that the legal title thereto be vested in plaintiffs, and for all proper relief.
¶5The defendants are the widow and heirs at law of Quinces R. Nolan, he being deceased.
¶6The court rendered a judgment and decree in favor of the plaintiff, correcting the deed as prayed for, and after unsuccessful motion for a new trial defendants appeal.
¶7Upon the trial plaintiff offered in evidence a duly certified copy of the record in the recorder’s office of Vernon county of the power of attorney from Quinces R. Nolan -and wife to Jackson P. Nolan of date December 16, 1865, authorizing him to sell and convey in their names the land in ques*564tion, to which, defendants objected because not proved or acknowledged before any officer authorized to take the acknowledgment of such instruments under the laws of this State, but the objection was overruled, and the deed read.
¶8It appears from an inspection of the certificate of acknowledgment to this power of attorney that it was acknowledged before the department clerk of the Inferior Court of Henry county, Georgia, a court having a seal, and is certified to under the hand of the clerk and seal of the court to which he was clerk, thus complying literally with the statute, in regard to taking the acknowledgments to such instruments. [Secs. 17 and 19, pp. 358, 359, E. S. 1855; secs. 9 and 12, pp. 444, 445, G. S. 1865.]
¶9This was the only objection raised to the admission in evidence of the copy of -the power of attorney in the court below, and while other objections are now raised, they come too late, and can not be raised for the first time in this court.
¶10It is also claimed that there was no evidence to justify the finding and decree of the court. There is much force in this contention. There was really no evidence so far as disclosed by the record, which showed that at the time of the execution of the deed by Jackson E. Nolan and wife, he did not own an undivided one half interest in the land described in the deed executed by him in his own right, or that he intended to convey that half as the attorney in fact of Quinces E. Nolan. The two deeds by Jackson E. Nolan, one as attorney in fact for Quinces E. Nolan, and the other in his own right, were each for an undivided one half interest in the same lands, executed to the same party ¥m T. Cessna on the same day, and, acknowledged before the same officer, which seems to be inconsistent with the idea that there was a mistake in the execution of the deed by Nolan in his own right. It is true that he might in the first place have sold to Cessna only an undivided half interest in the land, as the attorney in fact of Quinces E. Nolan, and, after executing to him a deed there*565for, as such attorney, sold him the other half in the same capacity, but there was no evidence adduced which tended to show such to have been the case and it can not be so presumed from the facts disclosed.
¶11The payment of taxes by plaintiffs, and those under whom they claim title to the land, had no tendency whatever to support the allegation in the petition, with respect to the mistake in the deed.
¶12The court was not, we think, justified under the evidence in rendering a decree divesting defendants of title to the land, and investing it in plaintiffs, in the absence of some substantial evidence and there was none of that character adduced by plaintiff on the trial of this cause.
¶13We therefore reverse the judgment and remand the cause.