Doe ex dem. Eady v. Roe

By the Court McCay, J., delivering the opinion. We think the Court erred in rejecting the copy deeds. The affidavits conformed strictly to the forty-second rule of Court. It is true, there was nothing in the affidavits affirming, directly, the existence and genuineness of the originals. We are of the opinion that this was proven “prima facie,” by the certified copies from the record. Why should not the existence of a proper record, be evidence of the existence and contents of a lost original? To go to record, a deed must be probated, either executed, or acknowledged before a magistrate, or proven by the affidavit of one of the witnesses. The very object of the record is to preserve a copy of the deed to be used if the original is lost or destroyed ; and it would largely lessen the uses of a record, if it were necessary, before it could be used, to prove the existence of the original by other evidence. The witness who could prove the original existed, could just as easily prove its contents. Indeed, a knowledge of [687] the contents, is necessary in order to prove the existence of a paper. It is not the mere paper that must be proven, but the contents of it. Unless there be forgery or false swearing, nothing but a genuine existing deed, can go upon the record properly, and the copy will show upon its face, if the requirements of the Statute have been complied with. We recognize fully the rule, that the genuineness and existence of an original, must be shown before the contents of it can be shown by secondary evidence. But in our judgment, this is done by evidence that there is a duly executed record of what purported to be an original, duly probated according to law. The cases referred to, 13th Ga., 515; 14th Ga., 185; 16th Ga., 268, and 30th Ga., 391; do not support the position of the plaintiff in error. In Jones vs. Morgan, 16th Georgia, 515, the deed had not been properly recorded, it did not purport to have been delivered, and this Court put its decision rejecting the copy, on that ground. The ease in 30th Georgia, 391, turned upon the same principle; the copy produced, showed a deed executed by two witnesses, neither of them a magistrate and there was no probate. This want of a proper probate, was the ground on which the Court put both those cases, and so far from being against the position we take, they are authorities in favor of it. Since both cases admit that if the deed had been properly recorded, the copies would have been admissable. The other cases referred to were not copies of records, and only establish, what is without doubt the law, that the existence and genuineness of an original must be proven. More especially is this use of a copy of the record proper under our law. The opposite party, can always force upon the producer of even an original deed, the proof of its execution, by making the affidavit required by section 2670 of the Code. He can thus do away with the effect of the record. He can force the actual proof of existence and genuineness of a lost, or destroyed original, in case like the present, in the same manner. Until that affidavit is made, we hold that the existence and genuineness of the original deeds? as well as their contents, is proven by the production of a' [688] copy from the record of duly probated and recorded originals: See Code, section 2671. Upon the other point we express no opinion, as we think a new trial ought to be had, on the first pointt