#### *H. A. Culpepper vs. E. B. Wheeler et al.*

In an action of trespass to try titles, to a tract of land, in order to give in evidence an attested copy of the deed, under which the party claims the land in dispute, it is only necessary to prove the existence of the original and its loss. That it cannot be found after a diligent and proper search, with those who should have tire possession of it.

*Before*Earle, J. *at*Marion, *Fall*Term, 1841, *who made the subjoined report.*

The land in dispute was granted to Henry Lambert. The plaintiffs are the heirs at law of Mary Godbold Smith, and claimed one half of the tract under a deed of conveyance, said to have been made by Lambert, the grantee, to Mary Godbold Smith and her sister, Julia Ann Smith. The original deed was not produced, and an office copy was allowed to be read in evidence under the following proof. The deed purported to bear date 9th February, 1805, and conveyed 200 acres, the lower part of the tract granted to Lambert, by specific boundary. James Tait married Julia Ann Smith, one of the grantees .in the deed, and entered upon her portion of the land in 1825, under that deed, which she had in her possession at the time of her marriage. He and his wife sold and conveyed their part of the land to Benjamin Holt, and he supposed he gave the original deed to Holt, who afterwards sold and conveyed that part of the land to the defendant, Wheeler, who has been in possession ever since. The deed, from Tait and wife to Holt, was executed in 1830, and from Holt to the defendant in 1832. Holt is now living in Mississippi. It appeared further in evidence, that Wheeler had also claimed to have acquired title to the moiety of the land belonging to Mary G. Smith, or to the plaintiffs, her heirs, although he did not set up this title on the trial. A. L. Scarborough purchased this part of the land from the defendant, and took a conveyance. But he subsequently sold and re-conveyed to the defendant. The originál deed from Lambert was not in his possession, nor did he see it. If delivered by Holt to the defendant, it was retained by him, as he was in possession of the remainder of the land. The witnesses to the original deed, or persons bearing the same names, were living in the neighborhood at *67the date, but are now dead. The deed appeared to have been proved and recorded about 1828, and Levi Oldham, before whom it purports to have been proved, was then an acting Justice, and is still living. The defendant was a deputy in the office of the Clerk and Register at the same time. Written notice was given to the defendant to produce the deed, and his return in writing was read, stating, that after diligent search among his papers, the deed could not be found.

On the foregoing proof, I allowed the office copy to be read in evidence, and the plaintiffs obtained a verdict, which it is now moved, on behalf of the defendant, to set aside, on the ground, that the existence and loss of the deed of Henry Lambert to Mary G. Smith and Julia Smith, was not sufficiently proved to authorize the admission of an office copy in evidence.

Dargan, for motion

1 Bay, 495; 1 M’C. 318; 2 Hill, 525; *Id.*542.

Sims, contra:

3 Stat. at Large 303, §30, A-deed is as good evidence as the original and ought to stand. He calls for a review *of Purvis vs. Robinson.*The Court refused permission to argue that question.

*Curia, per*

Earle J.

The argument on the part of the defendant assumes, that in order to admit an attested copy of a deed from the Register’s office, it is not only necessary to prove the existence and the loss of the original, but that there should be some proof of the actual execution; no case has gone thus far. In *Purvis vs.*Robinson, it was only held that the record, or an attested copy, should supply the loss of the original. So in *Dingle vs. Bonneau,*and in *Turnipseed vs. Hawkins,*1 M’C. 177—272, it was held only necessary to prove the loss of the original, in order to admit the attested copy as secondary evidence. The cases of *Peay vs. Pickett,*and *M'Laurin vs. Talbot,*have introduced no change in the rule, but relate only to the kind and degree of evidence which shall be deemed sufficient to establish the loss of the original; and both result in the same conclusion, that there is no better way to prove the loss of a thing, than to show that it has been sought for *68where it ought to be, where it is usually kept, and mig’ht be expected to be found, and that it has not been found. It is true, Mr. Justice Harper, in *M’Laurin vs.*Talbot, speaks of the proof afforded there, of the deed’s existence; and says, it is hardly possible to prove the loss of a deed, without giving some evidence of the existence and contents, or general purport. The evidence in the case before us, of the existence of the original deed, as a genuine paper,, is fuller and stronger, that it was in *M’Laurin vs. Talbot,*and of the same kind. Tait, who married one of the grantees, in the deed, and under whom the defendant derives title, found in the hands of his wife, at the time of their marriage, a deed purporting to be a conveyance from Lambert, such as the plaintiffs set up for the land in question; under that deed he entered upon the land as his wife’s property, and held possession until he sold to Holt, who entered, and afterwards sold to the defendant — and he has been in possession ever since, claiming title to the moiety of Julia Ann Smith, under the same deed, the existence of which he denies, and requires to be proved. The entry of one of the grantees, and the continued possession since 1825, under her title, affords abundant evidence of the existence of the deed as a genuine paper, as well as of its géneral contents and purport; even if the cases, on the construction of the act of 1731, required such proof. The language of the Act is, that the records of deeds, “duly proved before a Justice of the peace in the usual method, and recorded <fec., and also, the attested copies thereof, should be deemed to be as good evidence, in law — and of the same force and effect, as the original would have been, if produced.” It has been held that the original, if in existence, should be produced. If lost, or if, after.proper search, it cannot be found, its being proved in the usual mode, before a Justice of the peace and recorded, is, I apprehend, sufficient evidence that it once had existence. Next, as to the evidence of its loss. It was delivered to Holt, who conveyed to the defendant, in 1832. The title deeds should accompany the possession, and be in the hands of the owner. And it is a reasonable conclusion of fact, as well as a presumption of law, that when Holt conveyed to the defendant, he likewise delivered the *69title deed. Holt is a resident citizen of a distant State, not amenable to process issuing here, and incompetent as a witness, if he were. If he did not deliver it to Wheeler, the deed may well be considered beyond the reach of the plaintiffs, and, therefore, lost; and if delivered to Wheeler, which is far more probable, we have his own declaration, in writing-, that after diligent search the deed cannot be found. If, under such circumstances, the attested copy from the record is not competent, the registry of deeds is a mockery. The whole Court agrees that it was properly received, and the motion is refused.

B. J. EARLE.

We concur. J. S. Richardson, J. Belton O’Neall, Josiah J. Evans, A. P. Butler, D. L. Wardlaw.

Dargan, for motion. Sims, contra.