Wise v. Spears

ANDERSON, J. The deeds in question were duly acknowledged or proved according to law, and a transcript of the record of same was admissible in evidence, if it appeared to the trial court that the original was lost, or that the party offering the transcript was not in the custody or control of the deeds. Section 3374 of the Code of 1907. We may concede that there was not sufficient proof of the loss of said deeds; but there was proof sufficient to show that these plaintiffs were neither in the custody or control of same. Whether or not the Ward deeds were lost, or in the possession of Mrs. Spears or Mr. Simmons, they were beyond the immediate custody or control of the plaintiffs, and the proof on [10] the subject met the requirements of the case of Hammond v. Blue, 132 Ala. 337, 31 South. 357. The defendant not having made the affidavit required by the last part of said section 3374, which did not appear in section 992 of the Code of 1896, the trial court did not err in admitting in evidence the transcript of the record of same. Whether or not the Russell deed was shown to have been lost, or was traced into the possession of Mrs. Spears or Simmons, it was an ancient document, nearly 50 years old, and the plaintiffs were not the grantees thereunder, and no presumption arises that they were in the possession or control of same. — Allison v. Little, 85 Ala. 512, 5 South. 221. There was no error in admitting the transcript of the record of this deed. Mrs. Spears, the mother of plaintiffs, was not a party to the suit, and it cannot be presumed that she held the deeds for the plaintiffs, if she had the custody of same. Nor does it appear that Simmons held them as their lawyer in the cause, or for them in any capacity if he held them at all. In other words, the plaintiffs could not locate them, and, never having had the custody of same, the proof was sufficient to show that said deeds were not in their custody or control at the time of the trial. The judgment of the circuit court is affirmed. Affirmed. Simpson, McClellan, and Mayfield, JJ.. concur.