Action for partition of real estate. The ap*156pellant was the plaintiff and claimed to own the undivided two-thirds, deriving his title through a deed made by the administrator of the estate of Patrick Lee, and that the appellee owned the remainder as widow of the said. Patrick. The appellee answered'by a general denial.
The questions presented arise under the second specification of error — the overruling of the motion for a new trial.
The appellant insists first that, on the evidence, he was entitled to a verdict; but there are two reasons why he was not.
First. While he put in evidence a deed from the administrator to himself for the land, as alleged, he failed to make any proof of the proceedings in court, whereby the administrator was authorized to make the sale; and notwithstanding, according to the recitals of the deed, it was made upon the order of the same court in which the trial was had, the coui’t could not, as appellant assumes it should have done, take judicial knowledge of the proceeding. Grusenmeyer v. City of Logansport, 76 Ind. 549. The party who produces such a deed must show that its execution was authorized. Armstrong v. Jackson, 1 Blackf. 209 (12 Am. Dec. 225); Huddleston v. Ingels, 47 Ind. 498.
Second. The appellee put in evidence a deed of conveyance for the lots in question made to the plaintiff by her husband before his death, in the execution of which she had joined. The appellant objected to the introduction of this deed in evidence, on the ground that it was in fact only a mortgage. The court, however, could not accept such an objection as. true, and properly admitted the evidence. It was then doubtless competent for the appellant to have shown, if he could,, that the instrument was only a mortgage; but he offered no-evidence in that direction, leaving the court bound to treat the instrument, for the purposes of the case, as being what it seemed to be.
The appellant asked a new trial, on the ground of surprise in respect to the papers, upon which the administrator obtained the order for the sale of the land, being off the files. *157and inaccessible for use on the trial; but the showing is plainly ■defective, for not containing a statement that he had intended to use the papers, if he had had them, for not showing diligence in search, or why a postponement of the trial, for the purpose of making search, was not asked, and that, if intro-, ‘duced, the papers would have established the validity of the administrator’s sale and conveyance.
Judgment affirmed, with costs.