The transcript of the deed from Ezell to the appellee, the plaintiff below, was improperly admitted in evidence.
1.' The loss or destruction of the original was not sufficiently proved. The plaintiff was examined as a witness on her own behalf, and stated that she left the original deed in the office of the probate judge of the county for registration in 1859, and had never seen it since.
The probate judge then in office had been succeeded by another, and it was shown that when he turned over the books and records of the office to his successor, he took away with him the deeds that he had recorded, for the purpose of collecting his fees. As it did not appear the plaintiff had paid for recording her deed, the presumption is, it *642was taken away by tbe outgoing judge with the other deeds,, that he might collect his fees. The probability, therefore, is, the deed is still in his hands, and may be had by the use of the proper means.
2. The certificate of the probate of the, said deed on the transcript does not show that the same was proved, substantially in the form given in the Revised Code. — § 1549. 1. It does not state the name and style of the officer by whom the proof of the said deed was taken. 2. It does not show that the subscribing witness, by whom the proof was made, was known to the said officer. 3. It is not stated that the grantor executed the deed in the presence of said witness, and in the presence of the other subscribing witr ness. 4. Or that said witness attested the same, in the presence of the grantor and of the othe'r witness, and that such other witness subscribed his name as a witness in his presence.
The form bf probate given in the Code is intended, as far as possible, to protect parties from deception and imposition, against whom the transcript of a deed is- offered as evidence, in place of the original, without proof of execution, in open court.
If the officer fails to certify that the witness by whom the proof of execution is made is known to him, what security is there that the. deed itself may not be a forgery, a mere simulated paper; or, if not a forgery, that the witness by whom it was proved did not personate the real subscribing witness? This, perhaps, is the most essential requisite of the form given, but they are all important to protect suitors and prevent injustice.
The judgment must be reversed, and the cause remanded •for another trial. In the mean while, the plaintiff, by the proper diligence, may be able to recover the original deed, or to show its loss or destruction, and thereby lay the foundation for secondary evidence.
Again: The transcript, on the proof made, without more, was irrelevant to show title in the plaintiff. It should have been proved that the plaintiff’s vendor, Ezell, at the time the allegecl deed was made, was in possession of the land *643.conveyed by it, claiming the same or exercising acts of ownership over it. "Without this, no recovery could be had, even as against a party in possession, without any claim of title, without any paper title. — McCall v. Pryor, 17 Ala. 533; Cox v. Davis, 17 Ala. 714.
[Note btJIeporter.] — The opinion in this case was delivered at the June term, 1871, but was left out of the 46th volume of Reports, on account of a want of space.We lay no stress on the discrepancy in the initial letter of the plaintiff’s Christian name, and of the Christian name of the grantee, as it appears in the transcript. The L was no doubt mistaken for an S by the register in recording the deed, and should be treated as a mere clerical misprision.
If the original deed proves to be lost, the transcript, notwithstanding the defective character of the certificate of probate, although not competent to prove the execution of the original, that being otherwise proved, may be admissible to show its contents.
Let the judgment be reversed, and the cause remanded for further proceedings, at the cost of the appellee.