Bentley v. McCall , 119 Ga. 530 ( 1904 )

Cobb, J.

This was an equitable action brought for the recovery of land. The jury returned a verdict in favor of the defendant, and the plaintiffs complain that the court erred in overruling their motion for a new trial. The case as presented in this court depends upon the determination of one question, and that is, whether the court erred in admitting in evidence a certified copy of a deed under which the defendant claimed. When the certified copy was offered in evidence, one of the plaintiffs filed the affidavit of forgery authorized by the Civil Code, § 3826. The effect of filing this affidavit is to place upon the party offering the copy deed the burden of proving the execution of the original. McCall v. Bentley, 114 Ga. 752 (2). The subscribing witnesses were not produced, nor was there any evidence as to the handwriting of the alleged grantor or of either of the witnesses. The defendant sought to prove the execution of the original deed by circumstantial evidence. This was permissible. Payne v. Ormond, 44 Ga. 514 (2); Terry v. Rodahan, 79 Ga. 294. See also DeVaughn v. McLeroy, 82 Ga. 703. An abstract of the evidence which was introduced for the purpose of proving the execution of the original deed appears in the official report of the case. The general rule is that the existence, genuineness, and contents of a deed shown to be lost or destroyed may be proved by a certified copy of the record, if it has been properly and legally probated for record. Eady v. Shivey, 40 Ga. 684; Hayden v. Mitchell, 103 Ga. 431; Crummey v. Hamilton, 114 Ga. 750; Griffin v. Wise, 115 Ga. 614. As was pointed out, though, by Judge McCay, in Eady v. Shivey, 40 Ga. 687, this rule is not applicable in • a case-where an affidavit of forgery is filed. In such a case it • makes no difference whether it is an original ór a certified copy which is offered. The fact that the paper has been recorded goes for naught, and the actual proof of the genuineness of the' original, as well as of its existence, if a certified copy is offered, must be made. When the certified copy is eliminated from the case, we do not think the other circumstances proved are sufficient to authorize a finding in favor either of the existence or of the genuineness of the alleged original deed. The fact that the original appeared from the certified copy to be more than thirty years old would not affect the matter, as the rule in reference to ancient documents applies only to original papers, and not to copies. See Patterson v. Collier, 75 Ga. 419, 427, and cit.; McCall v. Bentley, supra. The defendant did not carry the burden imposed upon her by the filing of the affidavit of forgery, and the court erred in admitting in evidence the certified copy. There is nothing in this ruling to conflict with the decision in Payne v. Ormond, supra. There was no affidavit of forgery in that case, and it was simply held that the circumstances detailed were admissible, and that a jury could consider them under proper instructions from the court. It was not held that these circumstances alone were sufficient to establish the existence and genuineness of the lost deed. In addition to this, upon an examination of that ease it will be seen that the decision really turned on the question of prescription.

Judgment reversed.

All the Justices concur, except Simmons, C. J., absent, and Fish, P. J., disqualified.