Opinion of the court. state the accounts, and to ascertain the nature and extent of the partnership property, and to report to the court. The decree proceeds to say, that the commissioner, "after he shall have made such reports, and the same shall have bccn passed upon by the court, and in accordance with such further directions in this behalf, if any, which the court may give him, do proceed to sell all the real and personal estate of the said partnership, both or either of them." This decree is manifestly interlocutory. No authority was given to sell until the commissioner had reported the state of the accounts, and what property was owned by the different firms, and the court had passed on the report. The court, properly enough, reserved the right to approve or disapprove the report before the authority to sell was complete. How could the court know, until the accounts were stated, whether anything was due William H. Gray, or Eaton, and consequently, whether there was a necessity to sell real estate? It is monstrous to suppose that any court would order a sale to be made, especially where the interests of an infant defendant would be imperilled, until it was judicially ascertained that the rights of others demanded it. In pursuance of the directions given by the decree, the commissioner made his report on the 25th of March, 1856, and without waiting for its confirmation, actually sold, on the 3d day of May following, real estate to the value of nearly $70,000. And, as if to fix beyond question the authority under which he acted, he states to the court in his report of sales, made May 14th, that he sold "the real estate ordered to be sold by the decree pronounced on the 27th day of October, 1855." But it is claimed that a nunc pro tunc decree, subsequently entered, gave the power to make the sale, and rendered valid what, without it, would have had no validity. The only proceedings which the record discloses are those set out, ante, p. 629-30, and under them the claim is made. The motion there speaks of an interlocutory decree having been entered on the 7th day of April, which it was desired to correct. And the court, in passing on the motion, say that there was an error in the decree, which was the re Opinion of the court. sult of a mistake, and direct an amended decree to be entered nunc pro tunc, in lieu of the one which was entered on the 7th of April. This motion and order are predicated on a state of facts which did not exist. No decree was ever entered on the 7th of April, nor on any other day prior to the sale, and we cannot, therefore, even conjecture what the errors and mistakes were which it was desirable to correct. If the court had said, that on the 7th of April, the report of the commissioner was approved, and the sale ordered, but through inadvertence or neglect on the part of the court or its officers, the proper entries were not made, then it might well be argued that a nunc pro tunc decree could be made. A nunc pro tunc order is always admissible, when the delay has arisen from the act of the court.* But that is not this case. There is nothing to show that the report of the commissioner was approved prior to the sale; no evidence that any decree was entered, or any authority even to make one, on the day stated, nor in fact that the court was in session on that day. By no rule of law can a decree, which was clearly an afterthought, and made subsequent to the sale, bolster up the authority to make it. Purchasers at a judicial sale are protected, when the power to make the sale is expressly given, not otherwise. It is only when they buy on the faith of an order of the court, which clearly authorizes the act to be done, that the shield of the law is thrown around them. An officer of the court may erroneously suppose that the power to sell is given by a decree, yet, if he does sell, his act is without authority of law, and is void. The sale made by James D. Thornton, the commissioner appointed by the judge of the District Court of the Fourth Judicial District of California, on the 3d day of May, 1856, was without authority of law, and void. The purchasers at that sale acquired no rights against the heirs of Franklin C. Gray, and the deeds given by the commissioner conveyed no title. These general views are decisive of this controversy. Fishmongers' Co. v. Robertson, 3 Manning, Granger and Scott, 970. Syllabus. The court below directly charged the jury, that it was their duty to find a verdict against the plaintiff, Matilda C. Gray, which instruction was particularly excepted to, and was erroneous. Case No. 169, in which Brignardello and others are plaintiffs in error, is affirmed with costs; and case No. 223, in which Matilda C. Gray is plaintiff in error, is reversed with costs, and remanded, and a venire de novo awarded. JUDGMENT ACCORDINGLY. BEAVER V. TAYLOR. 1. Under the first section of the Statute of Limitations of March 2, 1839, of Illinois, entitled “An act to quiet possessions and confirm titles to land," which section gives title to persons in "actual possession of land, or tenements, under claim or color of title made in good faith, and who for seven successive years continue in such possession, and during said time pay all taxes," the bar begins with the possession under such claim and color of title; and the taxes of one year may be paid in another. But under the second section of the same act, which section says that, "whenever a person having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes for seven successive years," he shall be deemed owner,—the bar begins with the first payment of taxes after the party has acquired color of title. Hence, in a trial of ejectment, when the said different sections of this statute are set up, any instructions, outside of the facts, which do not keep this distinction between the two sections in view, and by which the jury, without being satisfied as to the requisite possession under the first section, might, under the second section, have found for the party pleading the statute, upon the ground that the taxes had been paid for seven successive years, although the first payment was made less than seven years before the action was commenced, will be reversed, upon the wellsettled principle that instructions outside the facts of the case, or which involve abstract propositions that may mislead the jury to the injury of the party against whom the verdict is given, are fatally erroneous. To prove payment of taxes, the defendant offered in evidence two receipts without dates; and to prove the date offered two letters having dates, which letters inclosed the receipts; also to prove the date, and the agency of the person who had made the payment and written the letters, offered certain entries in the account books of the parties on behalf of whom the payment was alleged to have been made. These persons Statement of the case. residing away from the land, and the clerk who made the entries being dead, of which death and of the handwriting proof was also offered: Held, that the evidence was all admissible: the receipts on the plainest principles of evidence; the letters and entries on principles not so plain, but still admissible, as falling within the category of verbal facts; neither of them being hearsay, nor declarations made by the party offering them, and tending, both of them, to illustrate and characterize the principal fact, to wit, the transmission of the receipts, and to put that fact in its true light, and to give to it its proper effect. THIS was an action of ejectment, brought in the Circuit Court for the Southern District of Illinois, by Beaver, the plaintiff in error, against Taylor et al., to recover premises described in his declaration. The action was brought on the 17th July, 1854. The date is important. Upon the trial, the plaintiff having shown title in himself, the defendants relied upon the first and also upon the second section of the Statute of Limitations of the State of Illinois of March 2, 1839, as making a bar.* The two sections were thus: "First. Every person in the actual possession of land or tenements under claim and color of title made in good faith, and who shall, for seven successive years, continue in such possession, and shall also, during said time, pay all taxes legally assessed on such land or tenements, shall be held and adjudged to be the legal owner of said land or tenements to the extent and according to the purport of his or her paper title. "Second. Whenever a person having color of title made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land, to the extent and according to the purport of his or her paper title." The defendants, to show color of title, gave in evidence a certain deed. The deed itself was admitted to be void, but the good faith of the defendants and the sufficiency of the deed for the purpose for which it was offered were not dis * “An act to quiet possessions and confirm titles to land,” ¿? 8 and 9 of the chapter "Conveyances," in the Revised Code of 1845. Statement of the case. puted. The defendants also gave evidence tending to prove possession for more than seven years before the commencement of the suit. In making proof of the payment of the taxes the defendants offered in evidence two receipts, without date, from the collector to one Gilbert, one for the State and county taxes, and the other for the road tax, of the year 1847. They proved that the "collector had made a final settlement of the State and county taxes for the year 1847 with the proper officers;" and they gave evidence tending to prove that, during the years 1847 and 1848, Gilbert was the agent of Taylor & Davis (claimants of the premises under the statute) in respect of the taxes. The plaintiffs objected to the receipts as evidence, because it did not appear when the taxes were paid, nor that Gilbert had any connection with the color of title relied upon by the defendants. To meet the objection as to the time of payment, the defendants offered in evidence two letters from Gilbert to Taylor & Davis; one of the 10th of March, 1848, inclosing the receipt for the State and county taxes, and the other of the 4th of May, 1848, inclosing the receipt for the road tax. They offered also certain entries in an account book of Taylor & Davis, relating to the property in question and other property held by them in the same right. The letter gave an account in detail of Gilbert's debits and credits as agent in respect of the taxes, and referred particularly to the receipts in question. The books contained entries relating to the same subject and showing the recognition of his agency in the transaction. It appeared that the book was kept in Philadelphia, where Taylor resided, and that the clerk who made the entries was dead. Proof was offered of his death and of his handwriting. The letters and book were also objected to. The court admitted all the evidence, and the plaintiff excepted. The evidence being closed, the counsel of the plaintiff asked the court for nine different instructions to the jury; the only ones important to be here mentioned, however, being three, which were in regard to the defence arising under the second section of the Statute of Limitations already |