Walker v. Newhouse

Napton, J , delivered the opinion of the court. How the merits of this case may be, does not appear from the state of the evidence. Tile plaintiff brought trespass quail clan fregit, and the defendant justified under a right of way derived from one Riggin. in 1838. The plaintiff proved his possession and the commission of the trespasses charged, and the defendant produced a deed from “Riggin in 1839, giving him a right of way over the land then occupied by Riggin, and now by plaintiff. The defendant also attempted to trace the plaintiff’s title to Riggin, and for this purpose offered a record copy of a deed from Riggin’s trustee to one Ferguson. But this was excluded, because it was a copy, and here the case ended. Xf Riggin was the owner of the land in question in 1839, or whether owner or not, if the plaintiff claimed under him directly or intermediately, it is clear that the defendant made out his defence. If the plaintiff held under Riggin, lie took Riggin’s tittle or interest, subject to the covenant. Our statute permits the record of a deed to be read, when the original is lost or is not in the power of the party wishing to use it. There is no pretence here that the original was lost, and the question is, whether the defendant comes within the other contingency provided for. It is certain that the defendant might have issued his subpoena duces tecum — but to whom? It is sometimes customary for vendors to part with their title papers, but they are sometimes retained. Besides, [378] it is not certain that whoever might have been summoned, would have been compelled to produce his deeds. There are many cases in which a party is not compelled to produce his title papers. The defendant was only bound to make out a prima facie case. He is not presumed to have in his possession the plaintiff’s title papers. I am not prepared to say, that the position taken by the plaintiff in this case may not be correct in general, and that a court in most cases, before permitting a record copy of a deed to be read, would require some efforts to have the original produced. The practice must depend somewhat on circumstances. It is obvious, that in this case, if the copies of the deeds offered had been produced and used, the plaintiff had it in his power to correct any mistake, by producing the original. The instructions which the court gave were correct. We think the court should have admitted the record copies of the deeds offered. Judgment reversed and cause remanded.