The orators ask to be confirmed in their title to land clouded by the loss of their title deed prior to its record.
The respondents demur upon three grounds.
I. For the want of jurisdiction in equity over the subject matter of the bill.
II. For the want of equity shown on the face of the bill.
III. Because of a plain and adequate remedy at law.
*175Equity jurisdiction for discovery and relief in proper cases touching lost written instruments is as old as equity itself. Sto. Eq. Jur. § § 79, 84; Whitfield v. Fausset, 1 Ves. 392 ; Blight’s Heirs v. Banks, 6 T. B. Monroe, 192; Pom. Eq. Jur. § 1376, note 3 ; Campbell v. Sheldon, 13 Pick. 8.
The bill avers more than a dozen years’ undisturbed possession under the lost deed, and that the grantor has repeatedly refused to execute a new deed in its stead, and puts searching interrogatories for answer upon oath concerning the execution and delivery and loss of the missing deed ; but it does not aver that the loss was not without even the culpable negligence of the orators themselves; nor does it suggest that the respondents were in auy way responsible or chargeable for its loss or destruction.
Equity withholds relief in causes when the party asking it deliberately makes the mischief from which he suffers.
If the loss of a deed be accidental and without the fault of the grantee, thereby subjecting his title to hazard and peril, from which the law gives him no adequate relief, equity will afford that relief most suited to the necessities of the case. Hord v. Baugh, 7 Humph. 576; Dalston v. Coalsworth, 1 P. Wms. 731, 733.
If the bill be for discovery, containing the averments essential to a bill of that sort, and the discovery is had showing facts that warrant relief in equity or at law, the court having obtained jurisdiction of the cause may award such relief as proper for courts of equity to grant, if relief as well as discovery be prayed for in the bill. Stor. Eq. Jur, § § 71, 72; Russell v. Clarke’s Ex’rs, 7 Cranch, 69. If the discovery shows the proper relief to be an award of damages that ought to be ascertained by a jury, an issue can be framed and tried in the same suit without sending the parties to an action at law. R. S., c. 77 § 30.
But to obtain jurisdiction for relief in equity, over a cause purely legal, upon the ground of discovery, the bill must aver that the facts sought to be discovered are material to the. cause of action, and that the orator has no means of proving them in a court of law, and that the discovery of them by respondent is indispensible as proof. Pom. Eq. Jur. § 229; Stor. Eq. Jur. § 74, and cases cited; and the want of such averment is fatal *176on demurrer to the bill when jurisdiction is sought in equity for discovery and relief solely upon the ground of discovery. So, if by plea in such case these facts be traversed, it would seem that the issue must be decided in favor of the truth of the bill, before discovery could be decreed.
If the discovery, as in most cases, be in aid of the averments of the bill that show the cause to be one of equitable jurisdiction, then the averments of necessity for discovery are not essential, and a demurrer cannot be sustained for the want of them, but discovery must follow as a matter of course.
The orators’ bill is insufficient for the want of equity, inasmuch as it fails to show the circumstances of the' loss of the missing deed, or at least that the loss was occasioned without the orators’ fault. For aught that appears in the bill, the orators may have designedly destroyed the missing deed for some fraudulent purpose. For this reason, the demurrer is well taken and the exceptions must be overruled. Hoddy v. Hoard, 12 Ind. 474. Nor can the bill be maintained for discovery and relief upon the ground of discovery alone, for the necessary averments in such bill are wanting; but, if the orators can truthfully amend their bill so as to come within the reasoning of this opinion, they should be allowed to do so upon such terms as the court below shall consider just.
If the deed has been lost without fault, for which the orators are in equity chargeable, it would seem that they have no plain and adequate remedy at law. It is true that, although the deed has not been recorded, its contents may be proved by parol in an action at law; Moses v. Morse, 74 Maine, 472; but the cloud is upon the record title, and the remedies pointed out by the learned counsellor for respondents fail to heal the apparent defect of title shown by the registry of deeds. That cloud can only be removed by an appropriate decree in a court of equity.
Exceptions overruled.
Peters, C. J., Walton, Danforti-i, Virgin, Libbey, Emery and Foster, JJ., concurred.