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sist that the deed of Moses Hotaling and wife conveyed the fee to John P. Cleveland, instead of a life estate to him, with remainder to plaintiffs.

The plaintiffs, for the purpose of showing the devolution of title, introduced in evidence, over defendants' objections, record copies of the deeds, instead of the originals. Defendants contend with much earnestness that the proper foundation for the introduction of secondary evidence of the conveyances was not laid, and, although the records were admitted, the trial court ought to have excluded the same in reaching a conclusion, and therefore it will be presumed to have done so.

Section 13 of chapter 73 of the Compiled Statutes of 1891, among other things, provides that "the record of a deed duly recorded, or a transcript thereof duly certified, may also be read in evidence with the like force and effect as the original deed, whenever, by the party's oath or otherwise, the original is known to be lost, or not belonging to the party wishing to use the same, nor within his control."

It appears from the testimony of Mrs. Cleveland that she was the wife of John P. Cleveland and was residing with him at the time of his death; that he kept his papers in his desk at his home, where she made diligent search for the deeds, but was unable to find either of them, and that none of the original deeds constituting plaintiffs' chain of title were in her possession or under her control. True, Mrs. Cleveland is not a party plaintiff in her own right, yet she is the natural guardian of and appears and prosecutes the suit as the next friend for the minor plaintiffs.

In view of the statutory provisions and the construction. placed thereon by this court, we are of the opinion that sufficient foundation was laid for the introduction of the record of conveyances. The question of admitting in evidence records of deeds and other instruments duly recorded, instead of requiring the production of originals, rests largely in the discretion of the trial court. There was no

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abuse of discretion in this case in admitting secondary evidence. The deed to John P. Cleveland and the plaintiffs embraces only a portion of the lands described in the deeds to which objections are made; therefore, the record of such deeds was admissible in evidence without laying any foundation therefor, as there is no presumption that the originals were ever in plaintiffs' possession. (Delaney v. Errickson, 10 Neb., 492; Hapgood Plow Co. v. Martin, 16 Id., 27; F., E. & M. V. R. Co. v. Marley, 25 Id., 138; Buck v. Gage, 27 Id., 306.)

The point is made that the deed from Jesse Lowe, mayor, to Finn and Bridge was incompetent to show a transfer of title from the grantor to the grantees therein named, because the same is not witnessed; therefore it should not have been admitted by the trial court, and hence must now be disregarded. A sufficient answer to this contention is that no such objection was urged in the court below. The record shows that when the deed, or rather the record thereof, was offered in evidence the defendants objected to its introduction, as being incompetent, immaterial, and irrelevant. This objection is too general to reach the defect now insisted upon. (Gregory v. Langdon, 11 Neb., 166.) Had the ground of the defendants' objection to the deed been that it was not witnessed, its admission in evidence would have been improper. While this is true, it by no means follows that, since the deed was admitted without such objection being made, the court would be justified in rejecting the same when it comes to weigh the testimony.

The cases of Enyeart v. Davis, 17 Neb., 228, and Willard v. Foster, 24 Id., 213, cited in brief of defendants, are inapplicable. No such a question as we are now considering was therein decided. These decisions affirm the doctrine, which has been repeatedly recognized and applied by this court, that error will not lie for the admission of irrelevant testimony in a cause tried to a court without a jury. The reason for the rule is well stated in Willard v.

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Foster, thus: "The court must necessarily have an opportunity to examine each article of evidence offered, even for the purpose of rejecting it; and so the duty of acting and deciding the cause, upon the legal and relevant evidence selected from the mass that may have been introduced, may be as well discharged by the court upon the final consideration of the cause, as to pause in the course of trial to pass upon the admissibility of the several matters offered in evidence." In causes tried without the intervention of a jury, the court must base its decision solely upon the material and relevant testimony, and as the court is presumed to have considered none other, the admission of irrelevant testimony could not prejudice the party complaining of its introduction. But neither of the cases cited by counsel is authority for holding that a court, after admitting relevant and material testimony, may disregard the same because it was inadmissible, for the reason no foundation had been laid, or because of some other ground which properly might have been made, but which was not urged. No good reason has been suggested why the rule for which defendants contend should be adopted. It certainly would not aid in the administration of justice. Under such a rule, objections to testimony would be unnecessary, but the court would be compelled to regard all objections which could properly be made, but which were not insisted upon when the testimony was received. Ordinarily, in a case tried to a jury, objections not made to testimony when offered are waived, and we think the same rule should obtain where the trial is to the court.

The deed from Reeves to Lowe shows that the conveyance was made to the grantee as mayor of Omaha, and to his successors in office, in trust to convey the tract therein described, which includes the premises involved in this lawsuit, to the several owners and occupants. It is objected that it is not shown that Finn and Bridge were beneficiaries under the trust, therefore the deed from Lowe to them

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was not competent. The legal presumption, in the absence of any evidence upon the subject, is that Finn and Bridge were entitled to the deed under the terms of the trust, and that the trust was properly executed. (Tecumseh Town Site Case, 3 Neb., 267.)

It is urged that the deed from Bridge to Finn is void for want of certainty in the description therein contained, which reads: "All and singular that certain piece or parcel of land situated and being within the corporate limits of the city of Omaha, in the county of Douglas, and territory of Nebraska, it being an undivided quarter section, number sixteen (16), known and designated on Byers' map of the city of Omaha as Bridge and Cummings tract, the said land is the same as conveyed by deed to Archibald T. Finn and Charles Bridge, now on record in the recorder's office in the city of Omaha, containing forty acres, more or less." The precise quarter of section 16 intended to be conveyed is not stated, nor is the township and range mentioned; therefore the description is so defective and imperfect that nothing passed by that alone; yet the location of the property is definitely fixed and made certain by that part of the deed which refers to Byers' map of the city of Omaha and to the deed to Finn and Bridge. The deed from Bridge to Finn identifies the property as being the same as is designated in the Byers map as Bridge and Cummings tract, and as the same land conveyed by the deed to Archibald T. Finn and Charles Bridge, then on record, in which the property is described as the "undivided one-half of the southeast quarter of section sixteen (16), in township number fifteen (15) north, of range thirteen east, of the 6th principal meridian." Taking these two deeds together there is no uncertainty as to the property intended to be conveyed. (Caldwell v. Center, 30 Cal., 539; Coats v. Taft, 12 Wis., 389*; Newman v. Tymeson, 13 Wis., 172; Nelson v. Broadhack, 44 Mo., 596.)

But even if the property was not sufficiently identified,

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the judgment could not stand. Independent of the conveyance from Bridge to Finn, the latter was the owner of the undivided fourth of the tract in dispute by virtue of the deed from Lowe to Finn and Bridge, and if plaintiffs only obtained title to the undivided one-fourth, they would still be entitled to maintain the action.

It is insisted that the record does not show that Archibald T. Finn has ever parted with his title. This contention is based upon the fact that in the body of the deed from Finn to George Armstrong, the grantor is designated as Archibald T. Finn, while the signature to the conveyance is Arch. T. Finn. In the certificate of acknowledgment the name of the grantor is written the same as in the body of the deed, the officer taking the acknowledgment certifying that "personally came Archibald T. Finn, personally to me known to be the identical person whose name is affixed to the above deed as grantor, and acknowledged the instrument to be his voluntary act and deed." This was sufficient to show that the grantor described in the deed and the person who signed and acknowledged the instrument were one and the same person. It is obvious that Arch. was intended as an abbreviation of Archibald, therefore there is no contradiction between the certificate of acknowledgment and the deed. It frequently occurs in transferring lands that the grantor in making a deed signs either his initials or the abbreviation of his given name, although the Christian name is stated in full, both in the body of the deed and in the certificate of acknowledgment, yet the instrument would not be inadmissible in evidence for that reason alone, where from an examination thereof it clearly appears that the same was signed and acknowledged by the grantor. This doctrine is well supported by the adjudicated cases.

In Lyon v. Kain, 36 Ill., 362, the grantors were correctly described in the body of the conveyance and in the acknowledgment as Samuel B. Postley and Abraham