¶1Downing sued Weeks in case, the declaration containing two counts. The first count set up in substance that Weeks, as attorney in fact for Downing and his brother, who were owners each of one-seventh interest in certain Indiana lands, made fraudulent and collusive sales for much less than the worth of the property. The second count was to recover moneys received by him as such attorney, and not paid over or accounted for, and claims the amount due both brothers, as belonging by assignment to Helmus.
¶2The peculiar and somewhat confused condition of the record will make it more convenient to refer to the principles which govern the proceedings and their application, than to take up all the points separately.
¶3The power of attorney under which Weeks acted was given in the spring of 1866, by Helmus Downing, the plaintiff, and his brother, Theodore Downing, each of whom owned by inheritance one-seventh interest in lot sixty, in Elkhart, formerly owned by their deceased mother, Lola Downing, and one-seventh, or one-fourteenth, it is not clear which, in fractional section six, in town thirty-seven, in Elkhart county, formerly owned by their father, Rufus Downing. The plaintiff and his brother lived in California, and Weeks in Centreville, St. Joseph county, Michigan. *6Weeks sold the land and settled for what he claimed to be the proceeds, with plaintiff.
¶4The court below, on the trial, ruled out a certain item of evidence tending to show that defendant could find no. record title in the plaintiff This was erroneous. The whole issue under the first count (which seems to have been the principal cause of action before the jury), depended on the existence of a fraudulent sale at a lower price than the title was worth. The condition of the title and its marketable character became very important in this controversy, and there was evidence on both sides bearing upon its quality. Where fraud is charged on an agent, and made to depend on his management of a sale of lands, it must be determined more or less by the fact whether the agent knew the condition of the title, and what that condition was, on or off the records.
¶5It was also error to allow plaintiff to set up any right under the .first count for any interest in the land, except his own original interest. The count is confined to that, and there was neither averment nor proof which could authorize him to claim Theodore’s interest in any thing but the actual proceeds of sales. Under the first count he only declared for the fraud against himself.
¶6Transcripts of two Indiana judgments were introduced to show the title had' been made good against some apparent defects. One was a chancery suit establishing Lola Downing’s title to lot sixty. The other was an ejectment suit, to which plaintiff was not a party, brought by the other heirs of Eufus Downing, and one Nelson Downing (who appears to have claimed, and perhaps to have owned one-half of section six), against Jackson P. Steele and Louisa J. Horton, to recover section six.
¶7We see no relevancy in the ejectment record. It was not brought for this plaintiff; and if it proves any thing materia], it shows a recovery of the entire land as the property of the plaintiffs named in it, which would not aid *7Helmus. But it could neither help nor injure him, because he was a stranger to it.
¶8The Lola Downing chancery suit established her title to be good, as against the defendants whom she had sued; and plaintiff, as one of her heirs at law, was entitled to its ben-, efit. An objection was made to the attestation. But it is made by the clerk and presiding judge in the form required by the act of congress; and an additional clerk’s certificate appended to it could not vitiate the transcript, and was only corroborative, if it is to be regarded' at all. It was rightly admitted.
¶9Two documents, called abstracts of title, were introduced under stipulation, and used as evidence of the state of the title. Without some proof that the laws of Indiana recognize such instruments, we are somewhat at a loss to understand how they can show title. The stipulation under which they were produced does not determine what effect shall be given them. They are in some respects almost unintelligible; and are absolutely so without the aid of some proof to explain the meaning of the abbreviations and initial letters, which were intended to stand for words which may be guessed at, but which need explanation. As the record now appears, the charge given to the jury, that they make out title, seems to be erroneous.
¶10There are several other points raised by the assignments of error. But as the cause was heard ex parte, and it is difficult for us to determine how far they may become important on a new trial, we are not disposed to pass upon them.
¶11For the errors mentioned, the judgment must be reversed, with costs, and a new trial granted.