Singer Manufacturing Co. v. Riley , 80 Ala. 314 ( 1885 )

STONE, C. J.

This was a statutory real action instituted by Riley, and defended by the Singer Manufacturing Company. One link in the plaintiff’s chain of title was an alleged deed from Torrey to Eason, the latter being plaintiff’s grantor. The deed was alleged to be lost, and was attempted to be proved by copy. The copy offered is shown in the record. It purports to have two subscribing witnesses, one writing his name, and the other making his mark. It was never acknowledged or probated, but appears to have been recorded in the probate office. There is testimony, not contradicted, that the grantor, the grantee and both subscribing witnesses were dead when the trial took place. The copy deed offered is certified from the records of the probate office, but furnishes no evidence that it has been acknowledged, or its execution proved. It bears date May 23, 1870, and also bears the mark, “Filed in office for record February 17, 1875” — nearly five years afterwards — signed by the probate judge. This copy, or seeming copy of the deed is certified as a correct copy from the record of deeds and conveyances, and signed officially by the present probate judge. The paper was not self-proving.

The only testimony offered to prove the existence, contents and loss of the doed was that of Mrs. Eason, widow of the grantee, who could neither read nor write. Her testimony was as follows : “I am the widow of W. O. Eason. I can not read and write. Mr. Eason brought a deed over from Mr. Torrey’s, and read it over to me, to lot 23, and gave it me to keep. * * I took the deed and put it away. I have looked for it and can not find it.” On this testimony the plaintiff offered the copy deed in evidence, with certain testimony tending to prove it was a copy. The defendant objected that “there had been no sufficient proof of the loss of the deed.” The objection was overruled and an exception was reserved. In this the Circuit Court erred. The natural import of Mrs. Eason’s testimony, copied above, is, that soon after Torrey executed and delivered the deed to Eason, the latter brought it home and gave it to his wife to keep. She says she put it away, but does not say she put it where others would not have access to it. Moreover, tlie deed, according to the theory of the plaintiff’s phase of the proof, was in the probate office, and necessarily out of Mrs. Eason’s possession nearly five years after it was executed. The search should have been more diligent than Mrs. Eason’s testimony tends to prove, and should have been extended to the probate office. Search is not enough. There must be diligent search at every place the paper would be likely to be found. — 1 Grreenl. Ev. § 558 ; Mitchell v. Mitchell, 3 Stew. & Por. 81; 1 Brick. Dig. §§ 632, 633. So, proof of the execution of the instrument, as well as proof of the loss must also be made. — Comer v. Hart, 79 Ala. 389.

Nor was the copy produced in any sense a conveyance of the title. It contains no words of sale or transfer, and is wholly inoperative as a deed of bargain and sale. It should not have been received in evidence.

The Circuit Court also erred in allowing the alleged copy of the deed to be read to the witness, that she might testify in regard to its contents, and whether or not it corresponded with her recollection of the deed read to her by her husband. Jacques v. Horton, 76 Ala. 238.

Reversed aud remanded.