Sutton v. McLoud

By the Court.

Benning J.

delivering the opinion.

Was the Court right in admitting the copy grants, in evidence. ?

[1.] The copy grants being secondary evidence, were not admissible, until a proper excuse had been made, for not offering the original grants.

A proper excuse would have been, to show a compliance with the rule of Court, or with the rule of the common law, on the subject.

The rule of Court is, that whenever a party wishes to introduce the copy of a grant, in evidence, the oath of the party, stating that the original is not in his power or possession, and that he knows not where it is, shall be sufficient foundation for the introducti@n of such copy.” 2 Kel. 476.

This rule was not complied with. The defendant, though present in Court, and swearing to make out his excuse, would not, or, at least, did not, swear, that the originals were not in his power, and, that he did not know where they were. All he swore to was, that he had never seen the originals. His shortcoming in this respect, is calculated to make the impression, that the originals were in his power, or, that he knew where they were.

*642The rule of the common law, is, that secondary evidence of a writing, is not admissible, until diligent search in the proper places, has been made, without success, for the original.

The proper place to go to for these grants, was the place in which the grantor, Isaac Perry, kept his papers, and that place, of course, was to be found by calling on him, or, if he was dead, on his heirs, or personal representatives. The defendant did not call on any of these persons, so far as appears. His agent called on Joseph Perry, and Crawford Perry, and on A. J. Lawson. But the agent stated, that he he did not know, whether these persons were at all related to Isaac Perry or not. True, he says, that one of them, Joseph Perry, told him that he had once had the grants, but that they were lost, burnt as he thought. Yet this same Joseph Perry directed him to go further, and enquire of Crawford Perry; which shows,that Joseph Perry had his doubts, as to whether the grants were lQst or destroyed, or not.

Couple this with the failure of the defendant himself, to say that the grants were not in his power, or that he did not know where they were, and the two things are quite well calculated to make the impression, that the grants were still in existence, and accessible to the defendant, on proper exertion.

This being so, we think, that, in order to make out a compliance with the rule of the common law, it would have been necessary to show, that application had been made to the grantee, or, if he was dead, to his heirs or legal representatives. This not having been shown, we think, that the rule of the common law, was not complied with.

Neither rule having been complied with, the evidence was improperly admitted. This is our conclusion.

[2.] We see no error in the admission of the deeds made by the Sheriff! They were offered merely as color of title. The absence of the fi. fas. might perhaps, justify remark to *643the jury, as to the bona fides of the purchase from the Sheriff, but it was uot sufficient to authorize the exclusion of the deeds from the jury. Nor was it necessary, to make the deeds admissible, that it should appear, that the land had been sold, as the land of the grantee; or, that it should appear, that there had been seven years possession, under those deeds. All this is well settled.

The admission of the deed made by Attaway’s executor, to Neal, was, as far as appears to us, erroneous. That deed was .offered as color of title. It was made as late as 1864; and it was left unconnected with any older deed. Therefore, that it would make a color of title, beginning seven years before the commencement of the action, was impossible.

For this reason, we think, that this deed was improperly admitted, not, for the reasons relied on by the counsel for the plaintiff, Those reasons were the same, or of the same kind, as those relied on, for the motion to exclude the deeds made by the Sheriff, and these have been considered.

We see no fault in the first part of the charge — that relating to the plaintiff’s title. It seems to be favorable to the plaintiff, but we are not quite satisfied, that there was evidence to justify a charge for the defendant, on the statute of limitations. The evidence going to show seven years possession in the defendant, previous to the action, was very slight. It is hard to say, that there was any.

New trial ordered.