Beall v. Dearing

ORMOND, J. The question presented on the record and argued by the counsel, is, whether the preliminary evidence offered of the existence and loss of the deed, was sufficient to let in secondary evidence of its contents. The principal question which has been argued was upon the admissibility of the deposition of Mrs. Devan, to prove the loss of the deed. The question whether the deposition could be read as testimony for any purpose, after she had declined to answer the cross interrogatories, some of which were certainly proper, and should have been answered, is not one of difficult solution ; but I shall decline the consideration of the question, because it is not necessary to be determined. Conceding that the' deposition could not be read as evidence, the abortive attempt to take it, is certainly equivalent to a demand of the deed from the person in whose possession it was last known to be; which when the deed was in possession of a non resident, was held by this Court to be sufficient, in the case of Mordecai v. Beall, Sth Porter, 529, and Swift v. Fitzhugh, 9th Porter, 39. [127] The question for the Court to determine was, whether the facts adduced raised the presumption that the deed once existed, and was now lost, or out of the power of the party to produce, without fault on his part. It has been frequently remarked by this and other Courts, that no general rule can be laid down on this subject, but that each case must in a great degree depend upon its o.wn circumstances. In this case the deed was of very ancient date, being more than thirty years old at the time of the trial — it had never been in possession of the defendant, nor was it a muniment of his title, as it conveyed to his grantor many other'slaves besides the one he purchased, and which purchase was made not from the grantor in the deed, but at sheriff’s sale. In addition, the deed itself, a bill of sale of slaves, was not an instrument which would probably be preserved such a length of time, as a possession of less than one fourth of that period would be as good evidence of title, as would be afforded by the deed. No inference can arise that the defendant improperly withheld the deed, and altogether the facts present such a case as would require but a slight showing on the part of the defendant to let in the secondary evidence. The evidence adduced, consisted of the oath of the defendant, denying all knowledge of the deed — and that he had made inquiry of such persons as were supposed to have knowledge of it. That Devan who had married Jhe grantee, died insolvent, and that he did not know that any one had ever administered on his estate; — and finally, that he had sent to Florida, where Mrs. Devan resided, and made an ineffectual effort to take her deposition to establish the existence,loss, and contents of the deed. I consider this diligence quite sufficient to show that a proper search was made for the orginal, nor can I conceive what more could be required. That the deed once existed, is conclusively established by the testimony of Phillips, though it does not appear that his testimony was offered to the Court in the first instance, but subsequently to the jury to prove the contents of the deed. The transcript from the records of Washington County Court, purporting to be a copy of the deed, is certainly not evidence of the contents of the deed, as there is no law requiring such an instrument to be recorded ; but, in my opinion, under the cir [128] cumstances of this case, it was sufficient evidence of the fact, that such a deed once existed, at least to permit the party to go before the jury, to the satisfaction of which he would be required to prove as well the execution of the deed, as its contents. It is objected also that the subscribing witnesses should have been called. It is doubtless true that the execution of an absent or lost deed, must be proved in the same manner as if the deed was present, unless probably in a case where the deed is withheld by the opposite party; but if this deed had been ■produced, being more than thirty years old, it would have proved itself, and certainly the rule cannot be more stringent in this case, where the party relying on the deed never had, and was not entitled to the possession of it. If, however, the evidence which it appears was offered to the Court in the first instance, and upon which it acted, was insufficient, it would be impossible lor this Court to close its eyes to the fact, that evidence was subsequently offered to the jury establishing, beyond doubt, the execution of the deed, and the propriety of the judgment of the Court, and which indeed is not binding upon the jury, as they must finally pass upon the execution of the deed if tiiat is .contested. Upon the whole, I feel thoroughly convinced that the proof was ample, at least 'prima facie, that the deed once existed; and that if not lost, it was not in the power of the defendant to produce it. If I could bring myself to entertain a doubt 'upon it, sitting as I do, from the incompetency of my colleagues, alone, I would give the plaintiff the benefit of it by causing two of the Circuit Judges to be summoned. The question as to the sufficiency of the evidence to prove the contents of the deed was properly left to the jury. Let the judgment be affirmed.