Will defendants make affidavit they never saw the deed and do not know who has it?
They answered in the affirmative. Such affidavit was instcinter drawn up, sworn to, signed, and filed.
Ridgely. This Act is special and particular, and the recorder is bound to act within its intent and meaning. All the cases mentioned, of Peery’s Lessee v. Burton, Penrose and Dickerson, and Pekah’s Lessee v. Haughey have admitted the validity of this objection. Taking this copy, then, as a private one, it should be proved after proof of notice, or else it should be ancient and accompanied with proof of possession, Bull.N.P. 252. A copy may be read on account of its antiquity, 1 Morg.Ess. 159. The copy must be sworn to and proved compared with the original, even when it is proved in the hands of the party. The acknowledgment will only bind Levin Derickson and not the grantee, otherwise any one person might fix a deed upon another and make him a tenant in common.
Per Curiam. Bassett, C. J.A majority of the Court are of opinion that this paper must go to the jury, and there have what weight it may in this cause. I have always thought a deed not recorded within the year was yet valid; cases differently circumstanced ought to be determined variously by the courts, and especially in matters of evidence. We know the rules of evidence are frequently varied from in favor of justice; it is owing to .this *177that we see so many exceptions to the rules. I have a case where it is said (in Viner’s Abridgement, title, “Evidence”) if a deed is twenty-five or thirty years old, it shall be evidence, yet this is not the best evidence. Every case must stand on its own circumstances. It is upon this general idea that a majority of the court are of opinion this deed must be read. In 2 Term 41 it is said a deed coming out of the other party’s hands with notice must be read without proof. It is high time this point was settled. Here is an affidavit by defendants that they never saw the deed and do not know where it is. That being the case, how could they give notice to produce? There was no person to whom they could give notice. Another matter has great weight: it is in proof that James Bucchannan and his widow, and Mr. Green have had no possession as far as the date of the copy extends; there is no evidence of a prior possession. These things have induced us to make this exception to the general rule of evidence.
There was no charge. Verdict for defendants.
Note. Plaintiff’s counsel were anxious to have taken an exception, but the guardian refused to prosecute a writ of error.