Barton v. Murrain

Richardson, Judge, delivered the opinion of the court. The exemplification of the patent certified by the Commissioner of the General Land Office was properly received in evidence without proof of the loss of the original; and it is said to be evidence of as high a nature as the original, as it is a recognition by the government itself of the validity of its own grant under its own seal. (Patterson v. Winn, 5 Pet. 242.) But we think that the copy of the deed from the patentee to Biggs was properly rejected. When there is no ground of suspicion that a paper is intentionally withheld, and there is no apparent motive for [238] deception, the courts are very liberal in regard to secondary evidence. Thus, it has been held that a party claiming under a warranty deed is not presumed to hold the title papers anterior to his own deed, because they are supposed to be in the hands of his warrantor, who retains them for his own protection(Lord Buckhast v. Fenner, 1 Coke, R. 1; Jackson v. Woolsey, 11 John. 453; Eaton v. Campbell, 7 Pick. 10; Cook, lessee, v. Hunter, 2 Tenn. 113;) and in such cases copies may be read; also, that a purchaser at a sheriff’s sale may give copies in evidence when it is necessary to deduce the title of the person whose property has been sold, because he is only privy in estate and is not supposed to have the custody of the original; (Den, d. v. Hilliard, 2 Murph. 270;) and that a copy is admissible when the grantee, who is presumed to have the original, is out of the state; (Boone v. Dyke, 3 Mon. 532; 7 Pick. 10;) or the paper is in the- hands of a third person under such circumstances that the law will not compel him to produce it, or tljat he is beyond the process of the court. (United States v. Reyburn, 6 Pet. 352.) In reference to instruments conveying or affecting real estate in this state, which are acknowledged or proved, certified and recorded, pursuant to the general law on the subject, the same spirit of liberality is indicated in the 46th section of our act concerning conveyances, (1 R. C. 1855, p. 365,) which declares that when it shall be shown to the court by the oath or affidavit of the party wishing to use a copy, or of any one knowing the fact that such instrument is lost or not within the power of the party wishing to use the same, the record thereof, or the transcript of such record certified by the recorder under the seal of his office, may be used without further proof. It is not necessary to show that the instrument is lost or destroyed, but the transcript may be used upon proof that the original is not within the power of the person offering it. (Gilbert v. Boyd, 25 Mo. 27.) The words of the statute, “ not within the power,” should be construed as not within the control or possession of the party [239] wishing to use a copy — that is, not in the possession of the party, his agent, servant or bailee, or other person under his control. Therefore, if the original is presumed to be in the hands of a third person, a copy may generally be read without the preliminary oath or affidavit of the party wishing to use it; and, in all other cases, in the absence of any suspicion of unfairness, nothing more should be required than that the oath or affidavit should show that the original is not within the control of the person offei’ing a copy. The property in controversy is a part of the military bounty land, and there is special legislation in reference to instruments conveying or affecting land in the military district, the policy of which is obvious. The 51st section of the act concerning conveyances (1 R. C. 1855, p. 366) provides that every instrument in writing, which conveys or in any way affects any real estate situate in this state and being part of the military bounty land in this state, “ which has been or may hereafter be made and executed out of this state and within the United States, and which has been or may hereafter be acknowledged or proved in conformity with the laws and usage of the state, territory or district, in which such instrument has been or may hereafter be made, executed, acknowledged or proved, for the execution, acknowledgment or proof of instruments in writing, conveying or affecting real estate within such state, territory or district, shall be recorded in the county in this state in which such land be situated.” And the 55th section permits copies of such instruments or of the record of the same, duly certified, &c., to be read in evidence, with like effect as if the original were produced and read, upon proof of the loss or destruction of the original instrument. It will be observed that, though the legislature, out of tenderness to the vendees of- the soldiers of the war of 1812— the great majority of whom were nonresidents of this state— allowed to be recorded conveyances of land in the military district, with certificates of acknowledgment that are insufficient to deeds conveying land in other parts of the state, [240] it denies the right to use secondary evidence in such cases under the same circumstances that it is permitted in cases of ordinary deeds. In one case, a copy may be used upon proof that the instrument is lost and not luithin the power of the party wishing to use it; but in the other, only on proof of the loss or destruction of the original. The difference in the language of the 46th section and 55th section is too marked to be the result of accident, and we suppose it was intended to impose stricter terms on one class of instruments than on the other. It is not however deemed necessary, in order to let in secondary proof of the contents of a deed conveying land in the military district and not acknowledged according to the general law, that there should be evidence of an absolute loss of the original. In the nature of things, it is seldom that an actual destruction of a paper can be shown, and proof falling short of this must be received, and, as a general rule, it ought to be sufficient to raise the presumption of loss that search has been made in the proper place and by the proper person, and that the paper can not be found after due diligence has been used in looking for it. The deed may have been acknowledged in conformity to the laws of Massachusetts where it was executed, but the preliminary proof of the loss of the original was not sufficient to admit the copy in evidence. It does not appear from the testimony of Mr. Shackelford or of Mr. Barton that either of them ever made any search at any place or time, or ever had an interview with any person who had the right to the custody of the original. It is not shown that Rector’s estate ever had any connection with the land; and if it had, the second-hand statements of the administrator would not be received, because he is a competent witness and might be called to testify, and therefore his declarations were mere hearsay and inadmissible. The other judges concurring, the judgment will be affirmed.