Bill in chancery by the defendant in error against the plaintiffs in error.
The bill alleges that Barnet Ramsey, on the 20th of April, 1840, purchased of Rawley J. and James C. Ramsey, four lots in Charlottesville, Hancock county, and received from them for said lots a deed in fee; that he delivered said deed to one Samuel Ramsey, to be by him given to the recorder of said county for record; but it was casually lost, and never has been recorded. The defendant, after having become satisfied that it was lost, applied to the said Rawley J. and James C., who made him a second deed for the same lots. The second deed was executed on the 14th of May, 1842, and was duly recorded. Subsequently to the making of the first deed, and before the execution of the second, Carlisle and Stedman recovered in the Hancock Circuit Court a judgment against the said James C. Ramsey and one Eli White for 205 dollars. Afterwards, in the year 1844, an execution was *243issued on said judgment, and levied on all the interest of James C. Ramsey in said lots.
J. S. Newman, for the plaintiffs.The bill prays that the fee of said lots be vested in the defendant in error by virtue of the first deed, and for an injunction, &e.
The cause was submitted to the Court on bill, answers and depositions, and a final decree given that the legal title to said lots was and is vested in said Barnet Ramsey, by virtue of the first deed.
The only objection raised to this decree is, that there was no affidavit of the loss of the prior deed annexed to the bill.
This objection is well taken. The rule seems to be that “in cases of supposed lost instruments, where relief is sought,” “ an affidavit of the loss of the instrument, and that it is not in the power of the plaintiff, is indispensable to sustain the bill.” 1 Story’s Eq. Ju. s. 88. If the deed lost concern the title to lands and possession thereof is prayed to be established, such affidavit must be annexed. 1 Story’s Eq. Ju.; s. 83.—Walmsley v. Child, 1 Vesey 344.—Pennington v. The Governor, 1 Blackf. 78.—Hoddy v. Hoard, 2 Ind. R. 474. This case is obviously within the rule laid down in the authorities just cited; and the decree must, therefore, be reversed.
Per Curiam.The decree is reversed with costs. Cause remanded, &c.