Potts v. Coleman , 86 Ala. 94 ( 1888 )

SOMERVILLE, J.

1. We can perceive no objection to the admissibility in evidence of the power of attorney made by Isaac Hudson to Duncan, bearing date December 30th, 1859. It relates to a part of the land in controversy, showing authority for its conveyance to the vendees whenever they paid the remainder of the purchase-money. Its relevancy was not destroyed or impaired by the fact that it did not embrace the entire tract. — Green v. Jordan, 83 Ala. 220.

2. The possession by H. W. Coleman of the first note due E. M. Hudson by Roberts was prima facie evidence of its payment, either by him or by the maker, in view of the fact that Coleman had purchased the lands upon which the note constituted a vendor’s lien, and he was therefore as much interested in paying the debt as if he were the debtor. Potts v. Coleman, 67 Ala. 22. And the note being found among Coleman’s papers after his death, was presumptively in his personal possession while living. — Lipscomb v. DeLemos, 68 Ala. 592; 2 Whart. Ev. §§ 1363-64.

3. The affidavit was sufficient to authorize the taking of the deposition of the witness Nix. It alleged that “a material part of the defense to said action depends exclusively on the evidence of said witness.” This is expressly made one of the statutory grounds for taking depositions to be used in civil cases. — Code, 1886, § 2801, sub-div. 5.

4. The plaintiffs’ attorney having crossed the interrogatories propounded to Nix, without raising* any objection as to notice of the time and place of taking the witness’ deposition, he must be held to have impliedly waived such objection. To permit the objection to be raised at the trial, for the first time, would enable parties to experiment, at the expense of their antagonists, upon the testimony of witnesses, and thus often reap an unfair advantage. — Aicardi v. Strang, 38 Ala. 326; Code, 1886, § 2803.

5. It was no valid objection to certain interrogatories in the deposition, that they called for the substance of the contents of the deed alleged to have been lost. It was unnecessary to prove the words of the conveyance, and the answers of the witness satisfactorily showed the substance of a valid deed under the statute, with the requisite operative words of transfer — “granted, bargained and sold.” “The proof of the contents of a lost paper”, as said by Chief - Justice Marshall, in Tayloe v. Riggs, 1 Pet. 591, “ought to be such as to leave no reasonable doubt as to the substantial parts of the paper.” We should say, in civil cases, the proof ought to be such as to furnish satisfactory evidence of its substantial parts. — Shorter v. Sheppard, 33 Ala. 648. Under the statute, any written instrument, signed by the grantor, or by an agent having written authority, “is effectual to transfer the legal title to the grantee, if such was the intention of the grantor, to be collected from the entire instrument.’’-^-Code, 1876, § 2948; Webb v, Mullins, 78 Ala. 111.

6. The motion also to suppress, based on the fact that Nix was a resident of Talladega county at the time the deposition was taken, was equally untenable, in as much as the statute authorizes depositions of residents to be taken on the ground set out in the affidavit. — Code, 1886, § 2801, sub-div. 5. It is quite another matter that the deposition of a witness taken on this ground — viz., that “the defense, or a material part thereof, depends exclusively on his testimony” — is taken de- bene esse, and can not be introduced if the witness is shown to be alive, and to reside in the county at the time of the trial. — Memphis & Charleston R. R. Co. v. Maples, 63 Ala. 601. The motion to suppress was not predicated on this special ground, and was a waiver of other grounds. The court did not err in overruling it. — Bartee v. James, 33 Ala. 34.

7. We are unable, however, to resist the conclusion, that no sufficient predicate was laid for the introduction of secondary evidence of the contents of the alleged deed, which was a question addressed to the consideration of the court, and not of the jury. To justify such evidence, especially when exclusively oral, the following facts must be established to the satisfaction of the court: (1) tjie existence and execution of the original paper, as a genuine document; (2) the substance of its contents; (3) its loss, destruction, absence from the State, or other satisfactory reason for failure to produce the original, which may be shown by such diligent search for it as would raise a reasonable presumption of such loss or absence. The one of these facts is as necessary to be proved as the other, and the failure, therefore, to prove either is fatal to the right to introduce the secondary evidence. We find in the record no satisfactory evidence of the genuineness of the paper exhibited by Coleman to the witness Nix, which he claimed to be a deed from Hudson to himself and Butt, and purporting, to be executed by Duncan, as attorney in fact for the grantor. The execution of the paper is not established; and without this, the introduction of secondary evidence of the contents of the lost paper, is unauthorized. — Comer v. Hart, 79 Ala. 389; Singer Manf. Co. v. Riley, 80 Ala. 314. Nix does not testify to the handwriting of Duncan, and no satisfactory evidence any where appears in the record as to the genuineness of Duncan’s alleged signature. Every fact testified to by Nix might be true, and yet the paper exhibited to him by Coleman might have been a forgery, or, to say the least, not genuine. We need not comment on tbe fact, that Nix was testifying as to a paper which he claimed to have seen more than twenty years before his examination. It is sufficient to say, that the opinion of the court is that, under the fundamental rules governing the admission of secondary evidence, the Circuit Court erred in admitting the contents of the alleged deed to be proved, without first requiring satisfactory evidence as to the existence of a genuine original executed by the grantor, or his written authority.

Eor this error, the judgment of the Circuit Court must be reversed, and the. cause remanded.