Hester v. Harrison

Atkinson, J. In "an action of ej'ectment parol evidence as to the contents of the deed under which the plaintiff claims was introduced without objection that the proper foundation for the introduction of such evidence had not been laid by proof of loss of the original deed. Erom the evidence introduced under such circumstances the jury was authorized to find that Ed. Holmes originally owned the premises in dispute, and had executed a deed thereto' to the plaintiff while she was an infant, and delivered the same to her grandmother who paid the purchase-money ; that the defendant admitted the execution of this deed to the plaintiff, and had requested the plaintiff to make a deed to these premises to his children, which she refused to do. This proof made out a prima facie' case for the plaintiff. The fact that the testimony of Ed. Holmes, who was introduced as a witness for the plaintiff, was somewhat uncertain and confused as to the person to whom he made the deed, was a matter for the consideration of the jury, and would not authorize a nonsuit, where the jury was authorized to find that he had [241] in fact made such deed. The case is not one presenting an eifort to create title to land by parol, bnt to prove the contents of a muniment of title to land by secondary evidence. No. 3391. September 7, 1923. Judgment reversed. All the Justices eoheur. S. P. New, for plaintiff. Larsen & Crockett, for defendant.