Admitting that the transcript of the record of the deed from Macey to Platt, ought not to have been admitted in evidence, there ought, notwithstanding, to be a new trial, unless the evidence given of the loss, execution, and contents of the original deed, entitled the plaintiff to a verdict. The transcript was not in evidence ; and, consequently, the defendant has had no opportunity to contest its validity, which it was competent for him to do, notwithstanding it may have been duly acknowledged and recorded. Had it been produced in evidence, he might, perhaps, have proved it to be a forgery, or that it had been obtained by a fraud or imposition, or have shown some other fact which would have rendered it void or inoperative ; or he may have a good and perfect title to the lot in dispute. I am of opinion that the deed from Macey to Platt was duly proved and recorded, and that the transcript offered on the trial ought to have been admitted in evidence. But for the reasons I have mentioned, that will not help the plaintiff. The question, then, is, whether the other testimony given on the trial, entitles the plaintiff to retain his verdict. I think not. The general rule is, that where a party is permitted to give parol evidence of the contents of a deed, or other writing, he must first prove the original to be lost or destroyed.
The party claiming under a conveyance, is presumed to have the custody of it. For aught that appears, the deed in question, may, at the trial, have been in the possession of-the lessors of the plaintiff, or one of them; they ought, at least, to have shown, as far as it was in their power, that such was not the case.
*304Had the clerk been examined, he might, perhaps, have provec^ (-jjg ¿ee(j had been found subsequently to the time of the search made by Walter Wood. The lessors of the plaintiff ought to be held to strict proof on this subject, for they may, for improper purposes, have withheld the original deed. But however this may be, there is another, and, as I think, an insuperable objection to the plaintiff’s right to recover on this evidence.
The execution of the deed by Macey, is not proved by any of the witnesses. The transcript having been excluded, no evidence of the execution of the deed arising from, it, can be taken into consideration. Neither Wood nor Matthews knew any thing about the execution of it; and taking it for granted, that there was sufficient evidence of the contents of the paper mentioned by Matthews, it is .not shown that that paper was the deed of Macey.
I am, therefore, of opinion, that there ought to be a new trial.
Spencer, J.Two questions were made on the motion for a new trial.
1st. That the proof of the loss of the deed from Zehnlon Macey to Zephaniah Platt, was. incompetent; and,-if ..otherwise, that there was no proof of the contents of the deed.
2d. That the transcript of the record offered in evir dence was correctly overruled, the same not having been authenticated as the law required.
I think it was sufficiently proved, that the deed in question had been in the hands of Walter Wood, and, after-wards, in the hands of the clerk of Onondaga ; but there is no proofthat he had not re-delivered it, after it was recorded. The evidence of a search in the office, would not tend to create any presumption of its being lost, unless it was proved that it was not re-delivered. But there is no proof ■of its execution, nor of its contents, independently of the probate indorsed on the deed. If it had been proved before the Onondaga commissioners, of which there is no evidence, it would not be competent to give that proof *305,'in evidence, unless the witnesses were dead. Mr. Matthews, the commissioner, does not take upon himself to say, that the deed before him comported with the transcript. The evidence, therefore, was improperly admitted.
There is some confusion in the acts relating to the proof or acknowledgment of deeds for lands lying in the military tract. The act of the 8th January, 1794, inhibits the recording of any deed for military bounty lands, unless it be acknowledged by the party making it; and the officer who takes the acknowledgment, is required either to have personal knowledge of the grantor, ór proof of his identity. The act of the 11th February, 1797, is general in its nature, making no exceptions as to the military bounty lands, and prescribes the method of acknowledgment and proof of deeds, without any reference to their date, so as to guard against forgery, or a personating of the grantors. The 5th section of the act of the 12th February, 1798, declares, that no deed executed on or before the 1st day of May antecedent, relating to any lands in Onondaga county, shall be thereafter registered or recorded, unless it be acknowledged or proved, according to the act of the 11th February, 1797. In the 8th section of the act of the 6th April, 1801, it is provided, that so much of the act of the 8th January, 1794, as provides for the acknowledgment or proof of deeds in a manner different from the provisions of that act shall be repealed, so far as respects conveyances thereafter to be made.
The deed in question was executed on the 23d day of June, 1794, and was proved on the 5th September, 1797, according to the directions of the act of the 11th February, 1797. The 5th section of the act of the 12th February, 1798, by prohibiting the recording of deeds, unless proved as this deed is, virtually repealed the act of the 8th January, 1794, and the subsequent repeal of so much of that act, as provided for the proof or acknowledgment of deeds different from the provisions in the act of the 6th April, 1801, so far as respected future conveyances, cannot, by any just construction, qualify or de*306rogate from the legal operation of the act of the 12th J?ebruary^ 1798.
I am, therefore, of opinion, that the deed in question was well proved and recorded, and ought to have Keen, permitted to be read. But as the transcript of the record was not admitted in evidence, and the plaintiff obtained a verdict on incompetent proof, lest the defendant, relying on his objection to that proof, may not have exhibited his defence, there must be a new trial, with costs to abide the event of the suit.
Kent, Ch. J.After a careful analysis of the several acts relative to the military bounty lands, I am not able to concur in the opinion, that the deed from Macey to Platt was duly proved and acknowledged. I am happy, however, that my brethren have seen reason to put a different construction upon those acts, because the one they have adopted is more convenient, especially where the original grantor is dead.
On the second point in the case, I have also been of a different opinion from the one given, and it was, in some measure, a consequence from that adopted on the first point.
Under the peculiar circumstances in which those deeds were placed, by the construction which the judge adopted at the trial, (and which I think the true one,) the parol proof appeared to me suEcient to let in the transcript from the record, as a copy of a lost deed. But I wish not to press this point more than the. other, as the case cannot well occur again. The marks of authenticity which the copy received from the fact of its being recorded, though not suEcient to render it, per se, evidence, yet gave it a weight in the scale of evidence which no other copy could have received, and warranted an inference from slighter circumstances than are requisite in ordinary cases, of the existence, proof, and loss of the original.
Thompson, J. and Yates, J. not having heard the argument of the cause gavejio opinion.
New trial granted.