The record of the deed from Wm. Clarke, patentee, to Romulus.Riggs, dated May 14th, 1819, recorded July 24th, 1820, and acknowledged in Pennsylvania on the day of its date in conformity with the laws of the Territory of- Missouri, then in force, was properly admitted in evidence. It was unnecessary to make proof of the loss or destruction of the original, inasmuch as the deed was acknowledged according to the laws then in force here, and under section 30 of the chapter on conveyances, (Wag. Stat.) a certified copy can be used as evidence upon making affidavit that the original is not within the power of the person wishing to use the same. No objection was made when this deed was offered in evidence that such affidavit had not been made, and it is competent for a party to waive the necessity for such affidavit.
*386The second, third and fourth instructions asked by the defendants, were properly refused. They declare in substance, that a quit-claim deed offered in evidence in the plaintiff's chain of title, was insufficient to pass the title of the grantor therein as against a prior unrecorded conveyance from the same grantor. These instructions contain no qualification as to notice of such unrecorded conveyance, on the part of the grantee in the quit-claim deed, and are, therefore, in conflict with the recent decision of this court in Fox v. Hall, 74 Mo. 315.
Instruction numbered five, was properly refused for the reason that it left it to the jury to determine what constitutes adverse possession and also what' constitutes color of title. These were questions of law to be determined by the court with reference to the facts offered in evidence. The judgment of the circuit court will be affirmed.
The other judges concur.