#### ELLEN L. DOWNING, Administratrix of HESTER HAUGHTON, Deceased, v. MELVIN DICKSON, CALVIN HALL, MILTON COX, ROBERT ALLEN and THURMAN RIDDICK, Trustees of MORNING STAR A. M. E. ZION CHURCH, ROPER, N. C., and THURMAN RIDDICK and MAGGIE RIDDICK, His Wife, Individually.

(Filed 20 September, 1944.)

1. Lost or Destroyed Instruments §§ 2, 3—

If the original instrument cannot be produced and it becomes necessary to offer secondary evidence of its contents, such contents, including the course of its legal operation, must be established by the testimony of one who has first-hand knowledge of the subject, for hearsay is not competent.

2. Same—

“First-hand knowledge,” required to prove a lost instrument, does not necessarily imply testimony of verbal precision; but it is necessary to prove the execution of the paper, its delivery, its loss, the material parts, and its legal operation.

*4563. Dost or Destroyed Instruments § 3: Trial § 22b—

In an action to set up an alleged lost mortgage and to foreclose same, where there is no evidence of who signed the mortgage, or of the authority of anyone to sign it, and a total absence of evidence of the execution of the mortgage, the allowance of a motion for judgment as in the case of nonsuit was correct.

Appeal by plaintiff from *Thompson, J.,*at April Term, 1944, of 'WASHINGTON.

This was an action to set up an alleged lost mortgage, and to foreclose same.

When tbe plaintiff bad introduced ber evidence and rested ber case tbe defendants moved for judgment as in case of nonsuit, wbicb motion was allowed, and plaintiff excepted and appealed to tbe Supreme Court. G. S., 1-183.

*H, S. Ward for plaintiff, appellant.*

*W. L. Whitley and P. H. Bell for defendants, appellees.*

Sohenck, J.

In *Powers v. Murray,*185 N. C., 336, at p. 338, 117 S. E., 161, it is written: “If tbe original (instrument) cannot be produced and it becomes necessary to offer secondary evidence of its contents, sucb contents, including of course its legal operation, must be established by tbe testimony of one wbo bas ‘first-band knowledge on tbe subject’; for hearsay based upon statements made by third parties is not deemed sufficient to impart competent and correct information of tbe matter in dispute. *Propst v. Mathis,*115 N. C., 527. This ‘firsthand knowledge’ does not necessarily imply testimony of verbal precision, but it should embrace entirety of parts. Aside from tbe practical impossibility of recalling tbe identical words of a lost deed, they are not essential in proof of tbe contents. *But it is*necessary *to prove the*execution of tbe deed, its delivery, its loss, tbe material parts, and its legal operation.”

Tbe evidence offered by tbe plaintiff in this action fails absolutely to prove tbe execution of tbe mortgage sought to be set up, and tbe evidence of its delivery, material parts and legal operation is very scant, if indeed extant.

Tbe plaintiff is forced to bottom ber case upon tbe testimony of tbe witness A. L. Alexander, wbo testified in effect that Hester Haughton, tbe plaintiff’s intestate, prior to ber death, showed him a mortgage for tbe purpose of letting tbe witness issue a fire insurance policy on tbe property covered thereby for the- amount of tbe indebtedness evidenced thereby and that be wrote and delivered to ber a fire insurance policy for *457$1,200.00 “to cover tbe indebtedness on tbe church.” On cross-examination: “I said I saw a mortgage in tbe box. I don’t know wbo signed tbe mortgage ... I tell tbe Court and jury tbat I don’t know wbo signed tbe note and mortgage I saw. I don’t know wbo probated tbe paper I saw. . . . Tbat I do not know anything about it. I didn’t bave anything to do with it and ain’t got anything to do with it now. . . . I did not read it and cannot recite any of its terms or provisions.”

In tbe absence of any evidence of wbo signed tbe mortgage involved, or of tbe authority of anyone to sign it, and of tbe total absence of tbe execution of tbe mortgage alleged to bave been lost and sought to be set up and foreclosed, tbe action of bis Honor in allowing tbe motion of tbe defendants for a judgment as in case of nonsuit was correct.

Tbe plaintiff in her brief filed in this Court practically concedes tbat she has not successfully maintained her alleged action to set up a lost instrument, but insists tbat she was entitled under tbe evidence offered to bave tbe case presented to tbe jury On tbe issue of simple indebtedness of tbe defendants to tbe plaintiff. This notwithstanding tbe fact tbat it appears from tbe record tbat tbe case was tried upon tbe theory of setting up a lost instrument in tbe court below. But, however this may be, in order to prove an allegation of indebtedness .the evidence must be positive, and not merely speculative, and such was not tbe evidence in this case. Tbe most direct and practically tbe only evidence on this point was tbat of tbe same witness Alexander wbo testified: “She (tbe intestate) asked me to look at tbe mortgage and see what indebtedness they owed her and tbe best I recollect it was between eleven and twelve hundred dollars. I wouldn’t say positively,” and such information as tbe witness bad was gleaned from an alleged mortgage tbe valid execution of wbicb was not proven.

Tbe judgment of tbe Superior Court is

Affirmed.