Decided on April 06,1900



- (1.) THE appellant objects that certain documents produced and put in by the 3 defendant were not proved. This is so; but it appears that they were produced by the defendant a purchaser at a Court sale, as showing the title of the judgment-debtor whose rights he had purchased and were not objected to by the plaintiff for want of proof until after dacree went against him. THE documents were not in fact in dispute. THE only question in the suit was whether, and to what extent, the plaintiff was bound by them, and in the circumstances we have no doubt that they were admitted with the consent of the plaintiff and their proof was tacitly waived. We do not, there fore, think that the plaintiff is entitled now to object to them, on the ground of the absence of technical proof.
(2.) THE documents are in fact registration copies of old mortgages--one of them is dated 1867 and another 1878--and they show that the lands the plaintiff now seeks to include as part of the estate he is entitled to partition of, were mortgaged partly by his father and partly by his brother when he was manager of the family. It is not disputed that, so far as those lands which are included in the father's mortgage are conceded, the plaintiff is bound by the mortgage and cannot claim partition of them. THEse are items Nos. 12 to 15 and 18 and 19. So far as the lands included in the mortgage by the brother, vie., items Nos. 9, 10, 15. and 16 are concerned, it appears from the deed that the mortgage was, to a very large extent at all events, for family necessity, and the mortgagee's rights in the lands were atter-wards sold to 3 defendant, a stranger, in execution of a decree without objection by any member of the plaintiff's family. We, therefore, think that, with regard to these also, the Court below was right in holding that the sate was binding upon the plaintiff and he is precluded from claiming partition of these lands. THE plaintiff, however, contends that he is entitled to redeem the lands. He might perhaps have had such a right if he had claimed it, but here his claim is for partition, and we cannot change the whole character of the suit by giving him a decree of such a kind now. We agree with the, Court below that item No. 17 was not shown to be part of plaintiff's family property. We think his suit was rightly dismissed as against 3 defendant. We dismiss this second appeal with costs.;

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