Vandergriff v. Piercy

West, Associate Justice. — Where it is proposed to prove the existence and'contents of a lost deed under the rule of evidence, as declared in our statute, certified copies constitute original evidence, if the requirements of the law are complied with. R. S., art. 2257. In this case, where it is proposed to prove by parol evidence the existence, loss and contents of certain original deeds outside of the statute, the rules of evidence at common law and in equity govern, and they must be complied with. R. S., art. 2245. There must be shown, in cases where it is necessary, that there has been a notice to produce given. It must also be shown that there has been diligent search and inquiry made of the proper-person, and in the proper places, for the lost deed. The loss of it must be proved, if possible, by the person in whose custody it was at the time of the loss, if such person be living, and if dead, application should be made to his representatives, and search made among the documents of the deceased. The declarations merely as to loss, of the person in whose custody it was at the time, will not do; such custodian must be produced or his absence satisfactorily accounted for. There should be evidence, in cases like the present, of some one who was in such a relation to the lost deeds as to be able to swear that they were in the county clerk’s office when that office was burned, and were there burned. The affidavit of the clerk or deputy, or of the parties who [373] had been or were entitled to be custodians of the deeds, should be taken, or the absence of such evidence satisfactorily explained and accounted for. Hooper v. Hall, 30 Tex., 154; Butler v. Dunagan, 19 Tex., 559; Crayton v. Munger, 9 Tex., 285; Bateman v. Bateman, 16 Tex., 544; Dunn v. Choate, 4 Tex., 14. The affidavit in this case did not lay a sufficient predicate for the introduction of secondary evidence, and such proof should have been excluded. The other questions presented by the record need not be noticed, as it is likely that different and fuller evidence will be introduced by both parties on the next trial; in which event, these questions may not again arise. The judgment is reversed and the cause remanded. Reversed and rejianded. [Opinion delivered Hay 1,1883.]