I concur in the result, on the following grounds: As I understand the matter, the record of the case, in which the Judge of Probate undertook to make the order of sale, under which defendants claim, still remained in the Court of Common Pleas, and subsequent to the sale ordered by the Judge of Probate, the Court of Common Pleas, upon whose dockets the case still remained, actually made an order in the cause. Now, as the Court of Common Pleas could, under the Constitution, exercise jurisdiction in the cause, it seems to me that there is much more reason to assume that said cause was transferred to the Court of Common Pleas rather than to the Court of Probate, where no part of the record was ever found, unless the order of sale be so regarded. While, therefore, the order of sale made iu a case of which the Court 'of Probate could take jurisdiction, might afford a presumption that all previous proceedings leading up to such order were regular, under the cases of Smith v. Smith, Rice, 232, and McQueen v. Fletcher, 4 Rich. Eq., 152, recognized in Brown v. Coney, 12 S. C., 151, yet such presumption would be rebutted by the fact that the record was, in fact, in another court, and never had been in the Court of Probate.
Judgment reversed.