This is an action of ejectment in the statutory form, brought by Boynton as next friend of Ola Pittman, who afterwards intermarried with Cook, and the suit, proceeded in the name of Ola Cook. By her abstract of title and *171the complaint she filed, and the facts made by the record, it appears that she claims title as heir at law of C. C. Pittman, deceased, and by what appears to be an amended abstract as remainderman under a trust deed from C. C. Pittman to Joseph Pittman, in trust for the payment of the debts of C. O. Pittman, with remainder over.
1. A motion was made to dismiss the writ of error, on the ground that the case brought here in the bill of exceptions is that of Ola Clark, and not Ola Oook. A motion was made by plaintiff in error to amend by the record, and insert the name of Cook in lieu of Clark in the third line of the first page of the bill of exceptions. We allow the amendment. It appears of record that the original party was the minor, Ola Pittman, that she intermarried with Cook, not Clark, and that the draftsman of the bill of exceptions, by sheer mistake, wrote in the bill of exceptions, Clark, in place of Cook. The ' statute provides that the bill of exceptions may be amended by the record so as to conform to it. Code, §4288. This makes no change in the party, but the real party for whom Boynton sued as next friend, Ola Pittman, who became by marriage Ola Cook, is the identical party who sued and recovered below, and is called to answer here by this writ of error.
The amendment being made, the motion to dismiss must be denied.
2. Ola Cook could not recover this land as heir of her father, because the title passed out of him and into Joseph Pittman by deed to Joseph during her father’s life.
3. Therefore, she is obliged to show that title passed to her under that deed to Joseph Pittman. Possession is title; and before it can be disturbed, the plaintiff must show that her title is sufficiently strong to disturb it. The defendant below, the plaintiff in error here, being in pos. session, will hold the land until she shows title better than his possession. She claims the better title, and must do so in this case, not as heir of her father, but as purchaser, in law, *172from Joseph Pittman, trustee. What sort of title is that? The deed of trust discloses. Her title is not only subordinate to her mother’s life estate, whatever that was, but to the payment of all the debts of her father. Not until those debts are paid could she compel Joseph Pittman to convey the land to her under the deed. The deed is that what • ever remains of this land and negro property also conveyed in the trust deed, after the debts are paid and her mother’s death, is to be conveyed to her, she being the surviving child.
It may be that, without a conveyance from the trustee, she may recover at law in ejectment; but that recovery would be based upon a perfect equity in her, and that equity is that she is entitled to possession of the land only' after the debts of her father are paid. If any of them are outstanding, she cannot recover, because her equity is dependent on their payment, by virtue of superior equity derived from the same deed under which she claims title. If the trustee paid those debts with money derived from the sale of this land, no matter how he conveyed it— he having the right to sell to pay debts — whether at private sale or public sale, individually or as trustee or agent or administrator, the party to whom he conveyed to pay the debts and who paid the money to him to pay those debts, acquired an equity superior to hers. That Edge paid the trustee four thousand dollars for this land, and that this money was applied by him as trustee to the payment of debts, seems clear from the evidence. If the trustee were now alive, and were called upon in a court of equity to convey to the daughter of O. O. Pittman this land, and White, Edge’s grantee, being a necessary party as possessor of the land, were made a party, could not White successfully defend his possession against this claimant under the trust deed, on the ground that he bought from the trustee; that, though his legal title to it was bad by being an individual title of Jhe trustee, or administrator’s title without an order to sell or with*173out advertisement and publicity of sale, yet that he bought from this trustee, and that this trustee got the money that White paid to him and expended some of it for debts of the deceased, and paid some of it to the life usee under the trust deed to him? Would a court of equity decree the conveyance to her against one in possession under, let us suppose, a defective conveyance from the man who was the trustee, and who applied the purchase money under his trust ? We do not think it would be done ; and if not, will a court of law give her the possession, under what is an equitable title ?
4. But be this as it may, was the sale to Edge by Joseph Pittman and the deed made in pursuance thereof other than a sale and deed by him as trustee ? It seems to us that the evidence is overwhelming that the sale and deed were made by him as trustee. Thompson, who negotiated the sale for Edge, and took a receipt from the trustee as trustee for part cash paid .down to bind the trade, swears so positively. The trustee’s wife sweai's the same thing. Edge swore the same, though some of his testimony, all on this point may be, was ruled out, of which more anon. The book kept by the trustee, and proved to have been kept by him and in his hand-writing, proves the same thing as strongly as the trustee himself, if alive, could have done. And the only scintilla of testimony against this mass of evidence is, that the original deed to White from Edge having been lost in the war by the raid of the Federal army, another was made in 1866, three or four years after-wards, from Edge to White, in-lieu of that lost or destroyed, -in which was recited these words in regard to the lost deed, to-wit: “And by Joseph Pittman, administrator of the estate of the saidO. C. Pittman, deceased, conveyed to him, the said N. N. Edge.” It is this recitation, and it alone, that makes the slightest trouble in this case. It is to be remarked that the recital is not that it was made by him as administrator, but-the words may have been used merely as descriptio persones; that it is not a recital-of any vital part of the terms of conveyance; and even if-it were* *174and if White and Edge were estopped from gainsaying its truth, that the presumption would be that, if made by him as administrator, it was legally made, and if estopped from its denial, it would be the denial that he made it legally as administrator, and when it was shown that he did not make it legally in that character, it opened the door for explanation to show aliuncle how and in what capacity he did make it so as to give it vitality. But let this pass.
If a mistake were made in the recital, even in one of this kind, it may be corrected, as is'conceded by the defendant in error, on clear testimony, and it may be done without going into equity under our practice. And the court so charged. • And the evidence is all bne way, that it was a mistake. Nothing but the recital itself is on the other side, and if that be sufficient to overcome all outside evidence, however overwhelming, then no mistake could ever be corrected; for the recital by mistake would overbalance all aliunde proof that the mistake existed, which is a reduotio ad absurdum.
So that we think that the verdict is overwhelmingly against the evidence on the issue whether or not the deed was made by the trustee as trustee, and that there should be a new trial on this.ground.
5. More especially must we direct a new hearing, because we think that the court below erred in several rulings on the trial of the case.
We are clear that, as both parties claim title under Pittman, as trustee, his books were admissible to show what moneys he received, and from what sources, in the execution of his trust, and how they were disposed of. Especially was the book of accounts kept by him, as trustee^ and so proved to be kept on its face, admissible, to show what he received for this land in controversy, and what he did with the proceeds. It is clear that the court erred in restricting it as «evidence to what he received, and excluding what he disbursed, all in his hand writing, and in the same book.
*1756. We do not see error in the admission of the deed in lieu of - the lost one. It was germane, and. the recital in it needed explanation.
7. We think that the testimony of Edge on the character of the deed first, made by the trustee to him, and lost, should have been admitted. It should not have been ex-eluded, because Pittman, the trustee, was dead. Pittman was the person under whom both sides claimed. He was no party to the contract or cause of action in antagonism to the plaintiffs in error, and certainly lie was no paity to the suit. He was bound to plaintiffs in error on the deed he m^de them, if he made it illegally as administrator, and bound to defendant in error rightly to administer the trust. Neither at common law, nor under the statutory evidence act-, was he an incompetent witness.
8. We think that the court was too close in charging the jury, under the facts in this case, to the effect that, though Edge paid for the land and conveyed it to White, yet, unless Edge went into actual possession, no title was conveyed to White. The evidence is that Edge was in dominion over the land, and thus controlled and possessed it for a few months, and then conveyed to White. Edge got title in the spring, and sold in the fall of 1863 to White, and if he did control and exercise dominion over the land, though not actually residing thereon, and White, in-good faith, bought and took possession, the title'passed.
9. We see no error in the charge about impeaching witnesses.
10. We do not see error in the charge that, to correct the recital in the deed which passed from Edge to White, the proof should be clear and satisfactory. We differ with the court and jury on the issue, whether or not it was clear and satisfactory. We think that it is so, as disclosed in this record before us.
11. We think that the court erred in ruling that Edge and White were bound to see to it that the money paid to the trustee went to the debts of C. C. Pittman. It is *176enough that the money is paid to the trustee under a purchase from him; it is his duty to apply it properly, and the grantees have no concern with it. The cestui que trust must look to the trustee. So that credit should have been given for the purchase money paid the trustee.
On a careful examination of the whole case, on the law and the facts, we are clear that the law and the ends of justice demand a new trial, and it is so ordered.
Judgment reversed.