White v. Hutchings , 40 Ala. 253 ( 1866 )

JUDGE, J.

The transcript of the deed from John Falconer to William Maguire was offered in evidence by the plaintiff in the court below, with an agreement between the parties to the effect, that the copy of the deed, as set out in the transcript, might be regarded as an original paper of the same tenor and date; and that the certificate and endorsements thereon, as shown by the transcript, might be regarded as in the handwriting of G. H. Gibbs, who was, at the date thereof, the clerk of the circuit court for Montgomery county. This presents the question, whether the deed, as specified in the agreement, was properly admissible in evidence, without further proof, it having been relevant to the issue.

If its admissibility had depended upon the sufficiency of the certificate of acknowledgment, the authorities cited by the appellee are conclusive to show that it was properly excluded by the court; for the certificate is, neither in form nor substance, such as was required by the first section of the act of 1812, which was of force at the time the certificate was made. — Aiken’s Digest, 89, § 7. But, nearly thirty-three years had elapsed since the date of the deed; and instruments more than thirty years old, unblemished by alterations, are said to prove themselves, the subscribing witnesses being presumed tó be dead; and this presumption, so far as this rule of evidence is concerned, is not affectedbyproof that the witnesses are living. — 1 Greenleaf s Ev. § 21, and authorities cited in note 1 to the text. From this it follows, that the circuit court erred in excluding the evidence.

2. But, under the circumstances, was not the transcript of itself, irrespective of the agreement between the parties, properly admissible in evidence ? The bill of exceptions fails to disclose with certainty the date of the admission of the deed to record; but, if it had been recorded in the proper court of the proper county, more than twenty years before the day of trial, the presumption was that its execution had been legally proved, or acknowledged, and that the proper certificate had been “written upon or under the deed.” To hold otherwise, would not be in harmony with the repeated adjudications of this court, that after the lapse of twenty years such presumptions may be made.-— Gantt’s Adm’r v. Phillips, 23 Ala. 275; Lay v. Lawson, 23 Ala. 377; Barnett v. Tarrence, 23 Ala. 463; Rhodes v. Turner and Wife, 21 Ala. 210; McArthur v. Carrie’s Adm’r, 32 Ala. 75; Milton v. Haden, 32 Ala. 30; Wyatt’s Adm’r v. Scott, 33 Ala. 313. To authorize this presumption, it was not necessary, under the weight of authority, first to prove possession or corresponding enjoyment, or other equivalent or explanatory proof. — 1 Greenleaf’s Ev., note 3 to section 144, and authorities therein cited.

With the presumption, then, that the deed had been legally proved or acknowledged, and properly admitted to record, what was necessary to authorize the transcript to be received in evidence ? Section 1275 of the Code declares, that, “ if it appears to the court that the original conveyance has been lost or destroyed, or that the party offering the transcript has not the custody or control thereof, the court must receive a transcript, duly certified, in tbe place of sueb original.” No direct evidence was offered to the court upon this question; but the evidence springing from the transcript itself, by presumption from lapse of time, was sufficient to show that, if tbe original deed bad not been lost or destroyed, it was, at least, not witbin tbe custody or control of tbe plaintiff. Maguire, tbe grantee, was tbe proper custodian of tbe deed, from tbe date of its execution. If, subsequent to the conveyance to him, be conveyed tbe land to another, still tbe presumption would be, that be retained tbe possession of tbe deed from Falconer; and after tbe lapse of more than thirty years, the plaintiff could not be required to trace up and account for either Maguire or tbe deed.

In England, all tbe title-deeds to real estate go with tbe land to *he purchaser; (2 Sugden on Vendors, 90 ;) and it may be reasonable there to require tbe purchaser to produce tbe original deed to a prior grantee. There, no system of registration prevails, and tbe preservation of tbe title-deeds, by wbicb tbe estate has been transferred from hand to band, becomes of great importance. They are in tbe nature of beir-looms, and descend, together with tbe chests in wbicb they are contained, to tbe heir. — 4 Black. Com., book 2, p. 428. But here, tbe mode of conveyancing is different. Tbe grantee' generally tabes only tbe immediate deed to himself, relying on-the covenants of bis grantor, who is answerable to him on failure of tbe title; and on conveying to another, being liable over as warrantor, be has tbe right to retain in bis hands tbe immediate deed to himself, as a protection against claims for tbe recovery of tbe property wbicb might afterwards be attempted. — Eaton v. Campbell, 7 Pick. 10; Jackson v. Woolsey, 11 Johns. 446; Cocke v. Hunter, 2 Tenn. Rep. 113; Nicholson v. Hilliard, 1 N. C. Law Rep. 253; Thompson v. Ives, 11 Ala. 239, and authorities there cited; Hussey v. Roquemore, 27 Ala. 281; Shorter v. Sheppard, 33 Ala. 648. See, also, Scott v. Rivers, 1 Stew. & Port. 19.

My brethren concur in tbe setting aside of tbe non-suit on tbe ground first stated, but announce no conclusion as to the admissibility of tbe transcript in evidence on the other grounds discussed in this opinion.

Let the judgment of non-suit be set aside, and the cause remanded.