delivered the opinion of the court.
Whether any lease to the lands in question ever existed ought to have been shown in accordance with the established rules of evidence. The old book admitted in evidence, entitled ‘£ Probate Docket, ’ ’ while it shows that the preliminary steps were taken by the board of trustees to effect á lease in 1833 and 1834, yet fails to show that the lease was completed — fails to show whether final payment was made and the leasehold title conveyed to the lessees, as required by law. The record does not show that any conveyances were produced on the trial, nor any record of them, nor was any effort to produce them or to account for their absence shown, and no foundation was laid for the introduction of secondary evidence.
It is evident that said lease had not been completed as late as February 8, 1838, for an act of the legislature was then passed authorizing and requiring the trustees thereafter to be elected in township 14 south, in range 18 west, in Monroe county, to make to the lessees, or to those lawfully claiming under them, leasehold title to said section 16 of said township whenever full and complete payment should be made therefor. See acts of 1838, p. 117.
Furthermore, it would appear that no conveyance could have ever been made to the land bid off by J. H. Bell, since two of his purchase money notes are produced on trial, and, from the custody in which found, would seem never to have been paid. The record fails to disclose whether that act was complied with and the deeds made. They were not produced, nor was their absence accounted for. It is not impossible that the section here in question might have been sold under the act of the leg*687islatnre of February 9, 1839, if the lease was not perfected. See act of 1839, p. 34. The best evidence should be produced, or its absence accounted for, after efforts to secure it had failed, before secondary evidence can be introduced.
The testimony in this case, as we think, is not sufficiently certain nor clear enough to authorize the court to declare that a valid lease of said lands was completed. The decree of the court below is therefore reversed and the cause remanded to be tried according to the established rules of evidence.
Reversed and remanded.
After the delivery of the foregoing opinion the solicitors of the appellee filed a suggestion of error.
Whitfield, J.,delivered the opinion of the court in response to the suggestion of error.
The omitted testimony, inadvertently left out of the original transcript and now, by consent, therein incorporated, goes only to the diligence of the search, by the attorney of appellee, for the alleged lost lease — not at all to show that such lease ever, in fact, existed. The principle of law controlling on this point is, as stated in 1 Taylor on Evidence (9th ed.), 429, edited by Chamberlayne, this: “First, if an instrument be lost or destroyed, a party who seeks to give secondary evidence of its contents must, to begin with, give some evidence that the original once existed, and then, ’ ’ etc.
We reversed the case for the absence of satisfactory proof in the peculiar case under the statutes — act of February 8, 1838, and others — and the facts. Of course appellee will be allowed still to make such proof, if it can.
Suggestion overruled.