Jackson ex dem. Neilson v. M'Vey

Per Curiam. The attorney was properly required to testify to the fact where the deed was at the time of the trial. (Brandt v. Klein, 17 Johns. Rep. 335.) That case decides, also, that the confession of Brown, one of the lessors, was evidence against all the lessors, as he could not be called on to testify. We are of opinion, that under all the circumstances of the case, the jury was misdirected. The deed was in Court, and the plaintiff’s counsel refused to produce it. To allow eounsel to cross-examine witnesses as to the contents of a deed in their possession, if at all admissible, should never be carried so far as to reject the testimony of witnesses speaking of the contents from me334 m°ry, because they -Cannot remember the particular mag* netic courses in a deed. John Cox proved, that he was executor oí’ John Broibn, the son and executor of Duncan Brown, and that he had the deed from James Alexander.icy Duncan Brown in his possession for many years ; that he had often perused it, and always supposed the premises in question within that deed; but he could not recollect the boundaries, nor state from recollection a single course which it contained. We consider the conclusion unsound, that because a witness cannot recollect the courses of the description in a deed, that, therefore, he cannot prove the contents of it. A man may know, that his farm is included in a deed taken from the vendor, without being able from memory to state the particular courses. When a party withholds and suppresses a deed to which his adversary has a right, every intendment should be made against him. We think the evidence of the contents of the deed should have been submitted to the jury, with strong intimations, that they ought to beheve the premises to be included in the deed, as if they were not, the plaintiff, by producing it, could show with certainty how the fact was; and that its non-production, the deed being in Court, was very strong presumptive evidence against the plaintiff. The mortgage from Duncan Dove to Duncan Brown, given in the year 1753, was proved by the admissions of, S. W. Brown, one of the lessors, to cover the premises. The deed from James Alexander to Duncan Brown, was given in 1750, and the premises were claimed under the deed, and the exercise of ownership exerted by Duncan Brown in taking a mortgage. This evidence was very strong to show, that Duncan Brown claimed to own the premises, and that the mortgage to him, was taken from Dove, on a sale to him, as security for the purchase money. The’ fact, then, that the premises had been held for thirty years under Duncan Brown's title, would not only defeat the equity of redemption, but would toll the right of entry of the real owner. There must be a new trial, with costs to abide the event of the suit* New trial granted.