This was an application by the plaintiffs against the defendant for the partition of certain described lands under the provisions of the 3996th section of the Code. The defendant filed his objections and denied the title of the plaintiffs to any part of the land sought to be partitioned. After hearing the evidence of the respective parties, the court denied the plaintiffs’ application, whereupon they excepted, and alleged that the court erred in admitting in evidence the records of certain deeds (the originals of which were lost or mislaid), also in admitting in evidence a bill in ecpúty and decree thereon in favor of Holderness, complainant, against Thomas W. Wilkinson, executor of John E. Wilkinson, deceased, et al., rendered in Troup Superior Court in July, 1867, and in denying the plaintiffs’ application for partition.
1. The plaintiffs claim to derive their title to the land in controversy under the last will and testament of their grandfather, John E. Wilkinson, the fifth clause of which is as follows :
“I will unto my son, Thomas W. Wilkinson, his share of my negroes as aforesaid in item 3, to be his, and at his death to go to his children, *384and also one equal portion of the balance of my property, both personal and real, and in the event of his death without children, then equally divided among his brothers and sister. ”
Assuming that the plaintiffs took an estate in remainder in the land under the will of John E. "Wilkinson,, still that land was legally sold by Thomas "W". Wilkinson, his executor, in the due course of administration, and those under whom the defendant now claims obtained a good and valid title thereto, as was adjudged and decreed by the court in the equity cause before referred to, it having been agreed that Tuggle, the defendant, as the executor of Callaway, held and claimed the title to the land in his testator through and from Holderness, the complainant in said bill in equity. The objection to the admissibility of the copy deed of the executor, and the deeds of those claiming under him, was, that it did not appear that an order had been granted by the ordinary authorizing the sale of the land, but the decree of the court obviates that alleged objection, for it expressly finds that an order was duly and regularly granted.
2. The objection to the admissibility of the record of the bill in equity and the decree thereon, was that the plaintiffs were not parties to that suit, and therefore were not bound by the decree had therein. The reply is that their father, Thomas W. Wilkinson, was the executor of the last will and testament of their grandfather, John E. Wilkinson, and was a party to that bill and answered it, and admitted that there had been a legal and valid sale of the land by him as such executor, and that being so he represented the legatees and devisees under the will of his testator so far as to legally dispose of his estate in the due course of administration thereof. On the statement of facts contained in the record there was no error in refusing the plaintiffs’ application for partition.
Let the judgment of the court below be affirmed.
Jackson, Justice, concurred. Bleckley, Justice, dissented.