delivered the opinion of the Court:
It is objected by counsel for defendants in error that this writ of error comes too late. Counsel say, “nothing appears in the record to show at what time the plaintiff in error attained her majority, or that she has brought her suit to this court within the statutory period. For all that appears here, her claim is a stale one.” This question can not be raised on the record in this case by mere suggestion in the argument in the case. In the absence of a plea alleging a bar, or some other matter in the record showing that this writ comes- too late, we can not properly entertain the question.
When this case was at a former time before this court, on an appeal taken by Race and the other defendants to the original petition, it was said by Mr. Justice Laweence, speaking for the court: “The mother of Emily Parkhurst, having the right of dower in an undivided half of the premises, and being the guardian for Emily, redeemed the premises, within twelve months of the sale, by paying to the master the *570requisite' amount. The master tendered the money to Phillips, who refused to receive it, saying the matter was out of his hands, and a few days afterwards Mrs. Stout demanded and received the money, giving her receipt to the master. * * * The lien under the mortgage was thus cancelled. ” And upon this statement of the facts, this court then adjudged that “the mother of Emily Parkhurst, who redeemed, * * * has a valid claim against Mrs. Stout, which amounts to an equitable lien.on the land while in her hands; ” and held that the court “did err in not providing in its decree that complainant (Mrs. Stout) should take her allotment, subject to' the equitable lien of the guardian of Emily Parhhurst, for the payment of one-half the redemption money. ” The decree, on that ground, was reversed, and that this might be done, the case was remanded to the court, below.
When the mandate of this court was filed in the court below, instead of entering the decree suggested by this court, the court below, among other things, permitted Race to file a cross-bill. The controversy with Mrs. Stout was brought to an end by the purchase of her interest by Mrs. Earl and Race, for the benefit of Race. The subsequent proceedings concerned no one but Race and Emily Parkhurst. A hearing was had between them (she appearing only by a general answer by a guardian acl litem). The proofs supporting the truth of .the statement that a valid redemption from the master’s sale under the mortgage had been made within the twelve months succeeding the sale, and which were considered by this court, were at the time of this last hearing all in the record, and formed a part of the case, although the attention of the court may not have been called to them. They consisted of the direct testimony of Mrs. Earl, Mr. Titsworth, and the certificate of redemption by the master, and the testimony of the husband of Mrs. Stout that he was present when Mrs. Stout (to whom the certificate of purchase was assigned) accepted the redemption money from the master.
*571At the time of the hearing, also, there was nothing in the pleadings which could authorize the introduction of proof tending to show that no redemption was ever made. . Race had said, in substance, in his answer to Mrs. Stout’s original hill (which was a joint answer by him and Mrs. Bari and others), that a redemption from the master’s sale had been successfully made, so the title of Emily Parkhurst was saved from being extinguished by the sale. In his cross-bill, under which the last decree was made, there is no allegation that there was no redemption. On the contrary, he said in his cross-bill, “that before the time of redemption had expired, Jannette Earl, as stated in her answer” (which was the joint answer above mentioned), “by raising money of A. D. Tits-worth, as stated in the answer, paid for the master’s certificate of sale of the property, all of which facts are fully stated in the answer, which he asks may be taken as a part of this his bill. ” So it appears tharfc by the allegations of this cross-bill (taking the details in the answer as a part thereof), there was a redemption before the time of redemption expired.
It was, then, clearly an error in the court below to find and recite in this last decree that “no person has redeemed or attempted to redeem from said sale.” On that error the decree is based, which holds that the certificate of purchase having been bought, from Mrs. Stout by Mrs. Earl, and sold to Race, thereby Race became, in equity, entitled to a master’s deed, under the sale by the master under the decree of foreclosure of the mortgage.
It is true, that in the trial of a cause in chancery, where it appears that oral evidence was heard which is not preserved in the record, and where the decree contains a recital of the facts proven, this court, in the absence of any matter in the record to repel such a presumption, will presume that 'the findings and recitals of the decree were fully sustained by proof not preserved in the record. But where such recital is of a supposed fact directly contrary to the finding of this *572court previously had in the case, and of a supposed fact not alleged in the pleadings, but at variance with the pleading of the party relying upon such supposed fact, and is also overwhelmingly proven not to be a fact by proofs which are preserved in the record, such a presumption can not prevail. The property having been redeemed, the legal title remained in Emily Parkhurst. It is true, that it would seem to have been liable to an equitable lien, in favor of her guardian, for one-half of the money expended in making the redemption. It may be that by the subsequent purchase of Mrs. Stout’s interest, and the transactions between Mrs. Earl and Race, when she undertook to sell this land to him for money to repay Titsworth, and by reason of other money which may have been expended for her ward, some rights and equities passed to Eace, but they are not stated in his cross-bill; and it may be that by a proper cross-bill in this case such rights and equities may properly be enforced. But these questions are not before us, and need not be passed upon.
•It is exceedingly clear that the deed by Mrs. Earl to Eace did not divest the legal title of Emily to an undivided half of this land, and it is equally clear no title could properly be deduced through the sale under the mortgage after that sale had been rendered inoperative by redemption. If Eace has any equities or rights as against Emily, he has misconceived them in his cross-bill. This decree must be reversed. As Eace may have rights and equities which, under proper pleadings, might have been protected or enforced, the cause will be remanded, that he may be allowed, on proper terms, to present other and appropriate pleadings, if he so desires, and may have an opportunity to assert and sustain the same, as he shall be advised.
The decree is therefore reversed, and the cause remanded for further proceedings not inconsistent with the views herein expressed.
Decree reversed.
Scott, J., dissenting.