¶1delivered the opinion of the court.
¶2By § 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
¶3Reversed and cause remanded for further proceedings in the court below.