Opinion by
The evidence preponderates very decidedly to the conclusion that Robert McAllister furnished the money with which the land claimed by Mrs. McAllister was paid for. At the time five hundred dollars of the purchase money was paid, and which was paid by him, the land was conveyed to him by Bryan, the vendor, and the deed acknowledged by Bryan and wife before Corum, the clerk of the county court of Greenup county, whose deposition is in the record. He not only proves the acknowledgment of the deed, but also proves the payment of $500 of the purchase money at the time by Robert McAllister. Ey that conveyance McAllister was invested with the legal title. The burning of that deed, and the execution of a second deed by Bryan to Mrs .McAllister did not divest him, and invest her with the title. Bryan, when he attempted to make the second deed, had nothing to convey, having parted with his title by the former deed.
As to the ruling of the court below on the report of Corum, the commissioner appointed to supply the part of the record lost, or destroyed, it is sufficient to say that exceptions were taken to the report of said commissioner, which were overruled by the court, and there the matter appeal's to have ended, No exception was taken to the judgment of the court overruling the objections to the commissioner’s report, and they must be treated by this court as waived.
On the subject of the cross-appeal of Mrs. Sarah McAllister, we remark that Bryan, Morton, Winn and Catherine McAllister are appellees in the appeal of Robert McAllister and Malcom M'cAllister against them. It does not appear from the endorsement o.f the names of the appellees on the record that Sarah McAllister is even an appellee; but if she were, she could not prosecute a cross-appeal against other appellees.
Wherefore the cross-appeal of Sarah McAllister against Bryan and others is dismissed and the judgment is affirmed, on the appeal of R. McAllister and wife against Bryan, Morton, Winn and Catharine McAllister.