Hall v. Guthrie

Napton, J., delivered, the opinion of the Court. Hall brought an action of covenant against Guthrie, founded upon an al- • leged breach of the covenant of seisin contained in a deéd to him from the said Guthrie. The defendant filed two pleas — non estfactum, and a plea denying the breach in the words of the declaration. A trial was had, and, during its progress, a paper was read, in which it was agreed that “ copies of the records of the deeds in the possession of Mr. Hall might be read in evidence in place of the originals; that is, that no objections should be made on the ground of secondary evidence; but they should be liable to all objections that the original would be.” The plaintiff then read a copy of the deed from Guthrie and wife to himself, dated 1st March, 1842, and a patent from the Governor of this State, dated 5th December, 1833, conveying the land described in the first deed to William Silvers and his heirs, as part of the Seminary lands. The defendant then read a deed from Silvers and wife to James Lawrence and John W. Lumpkins, dated 20th September, 1833; a Iso a deed from Lawrence and wife, dated 20th May, 1836, to Samuel C. Owens, conveying the undivided half of said land, and a deed from Lumpkins and wife, dated 10th May, 1836, conveying their undivided moiety to Thomas H. Wilson and heirs. The defendant then read a deed from Wilson and wife to Samuel C. Owens, dated 4th June, 1836; and a deed from Samuel C. Owens and wife, dated 4th June, 1836, to Jacob Steele, of Bath county, Kentucky, conveying the whole tract in fee, with covenant of warranty, &c. The defendant then offered to read a copy of the deed (Win Steele and wife to Luther Mason, hut objections were made, because there was no proof of the execution of said deed. The defendant then read in evidence a bill for an injunction, in which said plaintiff charged “that he was informed and believed that Jacob Steele signed, sealed, acknowledged and delivered his deed to Luther Mason, whereby he, the said Steele, [623] granted, bargained and sold the said land to the said Mason; which deed the party complaining believed to be in the possession of said Mason, .and prayed that Mason'be compelled to produce it,” &c. This testimony was objected to as any evidence of the execution of said deed, but it was admitted; and thereupon the plaintiff submitted to a nonsuit, which he afterwards moved to set aside. This motion being overruled, the case, was brought to this Court. A bill in chancery is not usually evidence against the party complainant, as many of its statements are supposed to be the mere suggestions of counsel; but where a bill is sworn to, as all bills must be whose purpose is to arrest the jurisdiction of another tribunal, it may he evidence against the party to the bill, if it contain admissions against his interest. The statement in the bill filed by Hall is, that he was informed and believed that a deed had been executed and delivered. The party does not profess to have any personal knowledge on the subject, nor is -there any thing in the statement to identify the deed spoken of with the deed, a copy of which was then before the court. If a deed has a subscribing witness, that witness must be called, or if his absence is satisfactorily accounted for, his hand writing may be proved. If the deed was without a subscribing witness, the handwriting of the maker may be proved, or the deed, if acknowledged and recorded, according to the provisions of our statute is admissible in evidence without further proof. The evidence offered was merely secondary, and was not admissible, without accounting for the absence of priáiary evidence, and moreover, had no tendency to prove the execution of the deed offered, because there was nothing in the statement to show that the deed spoken of was the idem, ileal deed offered in evidence. Call vs. Dunning, 4 East., 53; Abbott vs. Plumbe, Dougl., 216. Judgment reversed, and cause remanded.